DocketNumber： Nos. 5836-99, 6395-99, 10154-99
Citation Numbers： 2006 T.C. Memo. 36, 91 T.C.M. 806, 2006 Tax Ct. Memo LEXIS 36
Judges： \"Cohen, Mary Ann\"
Filed Date： 3/7/2006
Status： Non-Precedential
Modified Date： 4/17/2021
MEMORANDUM FINDINGS OF FACT AND OPINION
Table of Contents
FINDINGS OF FACT
Background
A. Rose
B. Printon Kane and Co. and the Printon Kane Group, Inc.
C. PK Ventures
D. PKVI LP
PK Ventures' Purchase of the Stock of SLPC, TBPC, TPC, and TPTC
Rose's Initial Receipt of an Equity Interest in PK Ventures
The Purchase of Zephyr
Transfers From PK Ventures, TBPC, and TPTC to Zephyr and
Zephyr's Bankruptcy
A. As Described in the Business's Financial Statements and
Income Tax Returns
1. 1987
2. 1988
3. 1989
4. 1990
B. Internal Revenue Service (IRS) Determinations
*37 Rose's Acquisition of Control of PK Ventures and PKVI LP
Transfers From PK Ventures to the Zephyr Purchasers
A. As Described in the Financial Statements and Income Tax
Returns for PK Ventures and PKV&S
B. As Described in the Roses' Income Tax Returns
C. IRS Determinations
Transfers to PKVI LP
A. Transfers From Unrelated Parties to PKVI LP
B. Transfers From PK Ventures and/or Its Subsidiaries to
PKVI LP
1. As Described in the Business's Financial Statements
and Income Tax Returns
a. 1986
b. 1987
c. 1988
d. 1989
e. 1990
f. 1991
g. 1992
h. 1993
2. IRS Determinations
Other Circumstances Surrounding PK Ventures' Operations and
Financial Arrangements
*38 A. Going Concern Notes in the Business's Financial
Statements
1. PK Ventures, SLPC, TBPC, and TPTC
2. PKVI LP
B. Litigation Involving SLPC, TBPC, and TPTC
C. Transfers From Rose to PK Ventures
Rose's Wages for 1986 Through 1993
A. Wages Received From Printon Kane and the Printon Kane
Group
B. Wages Recorded on PK Ventures' Books and Records
C. Wages Reported on Income Tax Returns
D. IRS Determinations
PK Ventures' Share of PKVI LP's Items of Income and Loss
A. As Reported on PK Ventures' Schedules K-1
B. As Reported on the Income Tax Returns for PK Ventures
and PKV&S
C. IRS Determinations
The Roses' Share of PKVI LP's Items of Income and Loss
A. As Reported on Rose's Schedules K-1
B. As Reported on the Roses' Income Tax Returns
C. IRS Determinations
The Roses' Share of Zephyr's Items of Income*39 and Loss
A. As Reported on Rose's Schedules K-1
B. As Reported on the Roses' Income Tax Returns
C. IRS Determinations %
Transactions Involving SLPC, TPC, and the Roses During 1994 and
1995
A. As Described in SLPC and the Roses' Income Tax Returns
B. IRS Determinations Imposition of Accuracy-Related
Penalties by the IRS
OPINION
Procedural Matters
Issue #1 -- Transfers From PK Ventures to the Zephyr Purchasers
Issue #2 -- Transfers From PK Ventures, TBPC, and TPTC to PKVI
LP
Issue #3 -- Transfers From PK Ventures, TBPC, and TPTC to Zephyr
Issues #4 and #5 -- Partners' Basis in PKVI LP
Issue #6 -- The Roses' Basis in Their Zephyr Interest
Issue #7 -- The Roses' Basis in Their SLPC Interest
Issue #8 -- Reasonable Compensation
Issue #9 -- Penalties
COHEN, Judge: Respondent determined deficiencies and penalties with respect to the Federal income taxes for petitioner PK Ventures, Inc. and Subsidiaries (PKV&S), for 1990, 1991, 1992, and 1993*40 as follows:
Year Deficiency Penalty
1990 $ 211,278 $ 2,269
1991 791,480 9,517
1992 649,7000 1,316
1993 750,743 --
By Notice of Final Partnership Administrative Adjustment (FPAA) dated January 11, 1999, respondent determined an upward adjustment of $ 100,661 with respect to the ordinary income of P.K. Ventures I Limited Partnership (PKVI LP) for 1991. Robert L. Rose (Rose), the designated tax matters partner for PKVI LP, filed a Petition for Readjustment of Partnership Items Under Code
Respondent determined deficiencies, an addition to tax, and penalties with respect to the Federal income taxes for petitioners Robert L. and Alice N. Rose (the Roses) for 1990, 1991, 1992, 1993, 1994, and 1995 as follows:
Addition to Tax
Year Deficiency
1990 $ 11,729 -- $ 2,346
1991 90,1333 -- 18,027
1992 503,928 -- 100,786
1993 177,286 -- 35,457
1994 248,981 -- --
1995 397,096 $ 8,446 --
The principal issues tried and briefed in these consolidated 90cases were:
(1) Whether a transfer of $ 1 million from PK Ventures, Inc. (PK Ventures), to 10 individuals, 9 of whom were shareholders of PK Ventures, in 1987 to enable them to purchase Zephyr Rock & Lime, Inc. (Zephyr), was a bona fide loan and, if so, whether that debt ever became worthless (Issue #1);
(2) whether transfers of funds from PK Ventures and/or its subsidiaries to PKVI LP prior to and during 1990 and during 1991 were bona fide loans and, if so, whether such debts ever became worthless (Issue #2);
(3) whether transfers of funds from PK Ventures*42 and two of its subsidiaries to Zephyr prior to 1990 were bona fide loans and, if so, whether such debts ever became worthless (Issue #3);
(4) whether PK Ventures had sufficient basis in its PKVI LP interest during 1990, 1991, 1992, and 1993 to deduct the losses that it claimed from PKVI LP on PKV&S's consolidated Federal income tax returns for those years (Issue #4);
(5) whether the Roses had sufficient basis in their PKVI LP interest during 1990, 1991, 1992, 1993, 1994, and 1995 to deduct the losses that they claimed from PKVI LP on their joint Federal income tax returns for those years (Issue #5);
(6) whether the Roses had sufficient basis in their Zephyr interest during 1990, 1991, and 1992 to deduct the losses that they claimed from that S corporation on their joint Federal income tax returns for those years (Issue #6);
(7) whether the Roses had sufficient basis in their St. Louis Pipeline Corp. interest during 1994 and 1995 to deduct the losses that they claimed from that S corporation on their joint Federal income tax returns for those years (Issue #7);
(8) whether the compensation that Rose received from PKV&S during 1992 and 1993 was reasonable (Issue #8); and
(9) whether*43 the Roses are liable for accuracy-related penalties under
Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. Most amounts have been rounded to the nearest dollar.
FINDINGS OF FACT
Some of the facts have been stipulated, and the stipulated facts are incorporated in our findings by this reference. The principal place of business of PKV&S was in Sarasota, Florida, at the time that the petition was filed at docket No. 5836-99. The principal place of business of PKVI LP was in Tampa, Florida, at the time that the petition was filed at docket No. 6395-99. The Roses resided in Florida at the time that the petition was filed at docket No. 10154- 99.
Background
A. Rose
Rose obtained a bachelor's degree in physics from Lancaster University in England, an M.B.A. and a master's degree in education from Lehigh University, and a master's degree from the University of Pennsylvania. Prior to 1985, Rose was employed by Evantash Associates, Chemical Bank, Soloman Bros., Thompson McKenan, *44 Kidder Peabody, J.J. Lowry & Co., and Community College of Philadelphia, among others. Through his employment, Rose gained experience in budgeting, financial futures, hedging transactions, foreign currencies, and loan transactions.
B. Printon Kane and Co. and the Printon Kane Group, Inc.
Printon Kane and Co. (Printon Kane), a Delaware limited partnership, was, at all relevant times, in the business of dealing in bonds and other investment opportunities. Printon Kane's business was eventually transferred to the Printon Kane Group, Inc. (Printon Kane Group), a Delaware corporation, during 1989.
Rose began working for Printon Kane in 1985 and was a full-time employee of Printon Kane through 1988. Rose remained employed by Printon Kane during 1989 and by the Printon Kane Group during 1989 and 1990. Rose worked in the area of corporate finance at Printon Kane and the Printon Kane Group. In that capacity, Rose acted as a loan broker and would attempt to find lenders to fund small hydroelectric projects, cogeneration projects, and coal mining projects. In addition, Rose's duties at Printon Kane and the Printon Kane Group included seeking out and developing investment opportunities*45 for the firm.
C. PK Ventures
On or about September 12, 1986, PK Ventures was organized as a Delaware corporation for the purposes of acquiring, owning, leasing, holding, operating, maintaining, and disposing of assets such as pipelines and alternate energy facilities and engaging in any and all activities related or incidental thereto. Rose was responsible for organizing PK Ventures as part of his duties to develop investment opportunities for Printon Kane. Sometime before Rose organized PK Ventures, Rose and Printon Kane's management had agreed that he would receive an equity interest in PK Ventures as part of his compensation for arranging this investment opportunity for the firm.
PK Ventures was initially authorized to issue 1,000 shares of stock. As of September 16, 1986, PK Ventures had issued all of those authorized shares to 11 individuals. These initial owners of PK Ventures included G. Clifford McCarthy, Jr. (McCarthy), and 10 individuals who were either partners in or employees of Printon Kane -- Amos Beason (Beason), Francis Cerosky (Cerosky), Robert Grimmig (Grimmig), Thomas Kane (Kane), Thomas Kane, Jr. (Kane Jr.), Eugene Kirkwood (Kirkwood), Louis Krutoy*46 (Krutoy), Joseph Mannello (Mannello), Joel Marshall (Marshall), and John Parker (Parker). As of that date, PK Ventures' stock was owned in the following proportions:
Number of Percentage of
Shareholder Shares Owned Shares Owned
___________ ____________ _____________
McCarthy 3 .3%
Beason 6 .6
Cerosky 36 3.6
Grimmig 156 15.6
Kane 407 40.7
Kane Jr. 21 2.1
Kirkwood 16 1.6
Krutoy 160 16.0
Mannello 24 2.4
Marshall 21 2.1
Parker 150 15.0
*47 The purchase price for these shares was $ 0.50 per share.
On September 15, 1986, Rose was elected by the shareholders of PK Ventures as its sole director. Rose then elected himself as the president, treasurer, and secretary of the corporation. Rose held the positions of sole director, president, treasurer, and secretary of PK Ventures and operated PK Ventures out of his office at Printon Kane until he resigned from those positions in November 1988. Krutoy replaced Rose as president of PK Ventures from November 1988 through March 1990. Although he resigned the position of president of PK Ventures, Rose continued to run the day-to-day operations of PK Ventures from his office at Printon Kane or the Printon Kane Group from November 1988 through March 1990. He then regained the positions of sole director and president of PK Ventures and held those positions through 1993. Rose's duties for PK Ventures and later for PK Ventures and its wholly owned subsidiaries -- St. Louis Pipeline Corp. (SLPC), Tampa Bay Pipeline Co. (TBPC), Tampa Pipeline Corp. (TPC), and Tampa Pipeline Transport Co. (TPTC) -- included handling cash management functions, payroll, insurance and risk management functions, *48 customer relations, and marketing.
During 1990, 1991, 1992, and 1993, PK Ventures operated as a C corporation, used the accrual method of accounting, and was the holding company for SLPC, TBPC, TPC, and TPTC. During 1991, 1992, and 1993, PK Ventures and its subsidiaries employed approximately 20 people. Neither PK Ventures nor any of its subsidiaries paid any dividends to their shareholders from 1986 through 1993.
D. PKVI LP
On September 15, 1986, Rose, as sole director of PK Ventures, adopted a resolution that PK Ventures, Rose, and Herbert Patrick (Patrick), as general partners, would form PKVI LP for the purposes of acquiring, owning, leasing, holding, operating, maintaining, mortgaging, and disposing of hydroelectric, cogeneration, and other energy projects. PKVI LP was subsequently organized as a Delaware limited partnership. Rose was responsible for organizing PKVI LP as part of his duties to develop investment opportunities for Printon Kane. Sometime before Rose organized PKVI LP, Rose and Printon Kane's management had agreed that he would receive an equity interest in PKVI LP as part of his compensation for arranging this investment opportunity for the firm.
*49 The initial partners in PKVI LP included PK Ventures, Patrick, Rose, McCarthy, and 10 other individuals who were associated with Printon Kane -- Beason, Cerosky, Grimmig, Kane, Kane Jr., Kirkwood, Krutoy, Mannello, Marshall, and Parker. Under the terms of the Agreement of Limited Partnership of PK Ventures I Limited Partnership (agreement of limited partnership), these partners made initial capital contributions to PKVI LP in the following amounts and held the following interests in PKVI LP as of September 15, 1986:
Initial Capital Participating Limited or
Partner Contribution Percentage General
_______ _______________ _____________ __________
PK Ventures $ 500 1.000% General
Patrick 0 40.000 General
Rose 0 30.000 General
McCarthy 148 .087 Limited
Beason 297 .174 *50 Limited
Cerosky 1,782 1.044 Limited
Grimmig 7,722 4.524 Limited
Kane 20,146 11.803 Limited
Kane Jr. 1,040 .609 Limited
Kirkwood 792 .464 Limited
Krutoy 7,920 4.640 Limited
Mannello 1,188 .696 Limited
Marshall 1,040 .609 Limited
Parker 7,425 4.350 Limited
The initial capital contributions to PKVI LP totaled $ 50,000. No other amounts transferred to PKVI LP were identified as capital contributions on its books. The terms of the agreement of limited partnership required that, as of the end of each fiscal year of the partnership, PKVI LP pay to each of its partners interest on their capital contributions (as adjusted for any subsequent*51 contributions and withdrawals) at a rate equal to the greater of (1) the prime rate as published in the Wall Street Journal on the last business day of the fiscal year plus 2 percent or (2) such other floating or fixed rate authorized by PK Ventures, the corporate general partner of PKVI LP.
In their roles as general partners of PKVI LP, Patrick was responsible for the management of the partnership's daily operations, and Rose was responsible for the partnership's ongoing financial activities. The terms of the agreement of limited partnership provided that neither Rose nor Patrick would be compensated for their services to the partnership. As corporate general partner of PKVI LP, PK Ventures had, inter alia, the exclusive right, power, and authority to authorize distributions of cash on behalf of PKVI LP. PK Ventures also had the exclusive right, power, and authority, subject to written approval of the partnership's limited partners holding at least 67 percent of the aggregate voting percentages of the limited partners, to do the following: (1) Make calls for additional capital contributions on behalf of PKVI LP; (2) permit a withdrawal of capital by any partner; (3) admit an additional*52 partner to the partnership; (4) permit the withdrawal of any partner from the partnership; (5) designate any additional investments for the partnership and determine the participating percentages of the partners in such additional investments; (6) sell or otherwise dispose of all or substantially all of the partnership's property attributable to any investment; (7) permit any agreement between the partnership and any general partner or any person controlled by or controlling or under common control with a general partner; and (8) permit the transfer or assignment, in whole or in part, by a partner of his interest in the partnership.
The terms of the agreement of limited partnership provided that the general partners of PKVI LP were under no obligation to make any additional capital contributions to the partnership in response to any capital calls made on behalf of the partnership by PK Ventures. A general partner's participating percentage could not be decreased as a result of not making any additional capital contributions to PKVI LP, but it could be increased as a result of making such a contribution. A limited partner's participating percentage could be adjusted upward or remain*53 the same if that partner did make an additional capital contribution to PKVI LP in response to a capital call, or it could be adjusted downward if that partner did not make an additional capital contribution in response to a capital call.
Patrick, Rose, and PK Ventures were the general partners of PKVI LP from September 15, 1986, until sometime in 1989. During that time, PK Ventures owned a 1-percent interest, Rose owned a 30-percent interest, and Patrick owned a 40-percent interest. Sometime during 1989, Patrick relinquished his interest in PKVI LP. As a result of Patrick's withdrawal from PKVI LP, Rose and PK Ventures became the partnership's only general partners. At that time, Rose held a 70- percent general partnership interest in PKVI LP. From May 1988 through January 1990, PK Ventures was both a 1-percent general partner and a 4.35-percent limited partner of PKVI LP.
PK Ventures' Purchase of the Stock of SLPC, TBPC, TPC, and TPTC
On December 10, 1986, PK Ventures entered into separate Stock Purchase Agreements for the purchase of 100 percent of the outstanding stock of SLPC, TBPC, TPC, and TPTC. At the time that PK Ventures entered into these agreements, SLPC, TBPC, and TPC*54 were owned by Joyce Western Corp. (Joyce Western), and TPTC was owned by Joyce Western, Kathleen Biondo, Christine Joyce, Helma Joyce, and James Joyce (the TPTC sellers). At all relevant times, these corporations were engaged in the following operations: (1) SLPC owned a pipeline that transported aviation fuel from Illinois to the Lambert Airport in St. Louis, Missouri; (2) TBPC and TPTC owned pipelines that transported anhydrous ammonia from the port of Tampa Bay, Florida, to Hillsborough County, Florida, and Polk County, Florida; and (3) TPC held a general partnership interest and/or a limited partnership interest in Tampa Pipeline Limited Partnership, a business that operated an aviation fuel pipeline that serviced the Tampa International Airport. As of December 10, 1986, TBPC and TPTC owned two of the four existing anhydrous ammonia pipelines in the United States. Also as of that date, TBPC had leased the use of its pipeline to W.R. Grace & Co. and Royster Co. (Royster), and TPTC had leased the use of its pipeline to International Minerals & Chemical Corp.
Under the terms of the Stock Purchase Agreements, PK Ventures agreed to pay the following base purchase prices for the stock*55 of SLPC, TBPC, TPC, and TPTC:
Corporation Base Purchase Price
___________ ___________________
SLPC $ 150,000
TBPC 1,000,000
TPC 50,000
TPTC 1,300,000
The parties agreed that these base purchase prices would be adjusted to reflect the amount by which each corporation's current assets differed from its current liabilities as of the closing date.
On December 30, 1986, PK Ventures agreed to pay to Joyce Western the following portions of the base purchase prices for the stock of SLPC, TBPC, and TPC on the transaction's closing date:
Corporation Amount Paid
___________ ___________
SLPC $ 40,000
TBPC 350,000
TPC 10,000
In addition, PK Ventures agreed to deliver to Joyce Western nonnegotiable promissory notes in the following principal amounts for the balances of the*56 base purchase prices:
Corporation Promissory Note Amount
___________ ______________________
SLPC $ 110,000
TBPC 650,000
TPC 40,000
Also on December 30, 1986, PK Ventures entered into an Interim Loan Agreement (ILA) with Norstar Bank (Norstar) in connection with its purchase of the stock of SLPC, TBPC, TPC, and TPTC. The ILA was a precursor to the permanent financing arrangement that PK Ventures was to enter into with Norstar in connection with this transaction. The ILA required Norstar, inter alia, to make a loan to PK Ventures in the form of a revolving line of credit in the maximum principal amount of $ 1.6 million. This loan was secured by an irrevocable letter of credit that the Summit Trust Co. (Summit Trust) issued in favor of PK Ventures on December 31, 1986. The terms of the loan required that all outstanding principal amounts bear interest at a rate equal to three-fourths of 1 percent above Norstar's stated prime rate, that payments of accrued interest and*57 outstanding principal amounts be made monthly, and that the entire outstanding principal balance plus accrued interest become due and payable at the time that the permanent financing was finalized. Advances under this loan were to be made, inter alia, to pay to James Joyce or Joyce Western a total of $ 600,000 in two installments -- $ 400,000 was due to be paid at the closing of the loan, and the balance was due to be paid at the earlier of the closing of the permanent financing or February 1, 1987.
The ILA also set forth the details of the permanent financing arrangement that was being negotiated between PK Ventures and Norstar. As set forth in the ILA, Norstar had agreed to make one term loan to SLPC in the amount of $ 1.1 million and one or more term loans to TBPC, TPC, and/or TPTC in the total amount of $ 10.5 million. The purpose of these term loans was, inter alia, to refinance the indebtedness that SLPC, TBPC, TPC, and TPTC owed to Norstar. In addition to these term loans, Norstar agreed to establish a 5-year revolving line of credit in the maximum principal amount of $ 2.5 million for PK Ventures ($ 2.5 million revolving line of credit). Under the terms of the permanent financing*58 arrangement, the term loans to SLPC, TBPC, TPC, and TPTC and the first $ 1.3 million of outstanding principal on the $ 2.5 million revolving line of credit were to be secured by a pledge of all of the stock of SLPC, TBPC, TPC, and TPTC as well as a first mortgage on and security interest in all of the assets of those corporations.
On December 31, 1986, PK Ventures closed on the purchase of the stock of SLPC, TBPC, and TPC from Joyce Western. On that date, PK Ventures executed documents entitled "Non-Negotiable Promissory Note" in favor of Joyce Western for the balances of the base purchase prices for the stock of SLPC, TBPC, and TPC. The terms of the Non- Negotiable Promissory Note for the balance of the base purchase price for the stock of SLPC required that the principal amount bear interest at a rate of 9 percent, that a $ 10,000 principal installment payment be made on January 31, 1987, and that the remaining principal balance plus accrued interest become due and payable no later than February 15, 1987. The terms of the Non-Negotiable Promissory Note for the balance of the base purchase price for the stock of TBPC required that the principal amount bear interest at a rate of 9*59 percent, that a $ 185,000 principal installment payment be made on January 31, 1987, and that the remaining principal balance plus accrued interest become due and payable no later than February 15, 1987. The terms of the Non-Negotiable Promissory Note for the balance of the base purchase price for the stock of TPC required that the principal amount bear interest at a rate of 9 percent, that a $ 5,000 principal installment payment be made on January 31, 1987, and that the remaining principal balance plus accrued interest become due and payable no later than February 15, 1987. These promissory notes were subordinate to the indebtedness incurred by PK Ventures, SLPC, TBPC, TPC, and TPTC to Norstar in connection with PK Ventures' acquisition of SLPC, TBPC, TPC, and TPTC.
Also on December 31, 1986, PK Ventures executed documents entitled "Subordinated Note" in favor of the TPTC sellers in exchange for the stock of TPTC. The Subordinated Notes were issued in the following amounts and were, in the aggregate, equal to the base purchase price for the stock of TPTC:
TPTC Seller Subordinated Note Amount
___________ ________________________
*60 Joyce Western $ 780,000
Kathleen Biondo 130,000
Christine Joyce 130,000
Helma Joyce 130,000
James Joyce 130,000
The terms of the Subordinated Notes required that the principal balances bear interest at a rate of 7.6923 percent, that payments of accrued interest be made monthly beginning on February 1, 1987, and that the principal balances become due and payable on January 1, 1992. The Subordinated Notes were subordinate to the indebtedness incurred by PK Ventures, SLPC, TBPC, TPC, and TPTC to Norstar in connection with PK Ventures' acquisition of SLPC, TBPC, TPC, and TPTC.
On or about February 3, 1987, SLPC, TBPC, and TPTC executed documents entitled "Promissory Note" in favor of Norstar in which they promised to pay to Norstar the principal amounts of $ 1.1 million, $ 6.5 million, and $ 4 million, respectively. The terms of SLPC's Promissory Note to Norstar required that the outstanding principal balance bear interest at a rate of 10.25 percent, that the interest on the outstanding principal*61 amount be calculated on the basis of a 360-day year, that payments of principal and accrued interest be made in equal quarterly installments of $ 55,532 beginning on February 15, 1987, and that any remaining balance of principal and accrued interest become due and payable on February 3, 1994. The terms of TBPC's Promissory Note to Norstar required that the outstanding principal balance bear interest at a rate of 10.40 percent, that the interest on the outstanding principal amount be calculated on the basis of a 360-day year, that payments of principal and accrued interest be made in equal monthly installments of $ 87,345 beginning on March 15, 1987, and that any remaining balance of principal and accrued interest become due and payable on February 3, 1997. The terms of TPTC's Promissory Note to Norstar required that the outstanding principal balance bear interest at a rate of 10.40 percent, that the interest on the outstanding principal amount be calculated on the basis of a 360-day year, that payments of principal and accrued interest be made in equal monthly installments of $ 53,751 beginning on February 15, 1987, and that any remaining balance of principal and accrued interest become*62 due and payable on February 3, 1997.
Also on or about February 3, 1987, PK Ventures executed a document entitled "Master Note" in favor of Norstar in which it promised to pay to Norstar the principal amount of $ 2.5 million or, if less, the aggregate unpaid principal amount of all advances made by Norstar to PK Ventures under the $ 2.5 million revolving line of credit. The terms of this Master Note required that all outstanding principal amounts bear interest at a rate equal to three-fourths of 1 percent above Norstar's stated prime rate, that the interest on the outstanding principal amounts be calculated on the basis of a 360-day year, that PK Ventures make payments of all accrued interest on the outstanding principal amounts on a monthly basis, and that the line of credit expire on January 1, 1992, with all amounts thereunder becoming immediately due and payable.
On February 9, 1987, Norstar sent a letter to Rose to inform him that it had transferred a total of $ 12.5 million in loan proceeds to PK Ventures' Norstar account. This letter indicated that, effective February 3, 1987, Norstar had advanced the following loans:
? Borrower Loan Amount
*63 _______ ___________
SLPC $ 1,100,000
TBPC 6,500,000
TPTC 4,000,000
PK Ventures 900,000
Norstar made the $ 900,000 advance to PK Ventures under the $ 2.5 million revolving line of credit. In addition, the letter indicated that Norstar had "closed-out" previously outstanding notes of SLPC, TBPC, TPC, and TPTC totaling $ 12,493,009. Pursuant to Rose's instructions, Norstar debited PK Ventures' account for this amount.
On or about June 23, 1987, TBPC executed a document entitled "Restated Promissory Note" in favor of Contel Credit Corp. (Contel) in which it promised to pay to Contel the principal amount of $ 5.3 million. This Restated Promissory Note restated and superseded the Promissory Note that TBPC had executed in favor of Norstar on February 3, 1987, in the original principal amount of $ 6.5 million. The terms of the Restated Promissory Note required that the outstanding principal balance bear interest at a rate of 9.9 percent through June 14, 1992, and 10.25 percent thereafter, that the interest on*64 the outstanding principal amount be calculated on the basis of a 360-day year, that payments of principal and accrued interest be made monthly beginning on July 15, 1987, and that any remaining balance of principal and accrued interest become due and payable on December 15, 1995.
Also on or about June 23, 1987, TPTC executed a document entitled "Consolidation Note" in favor of Contel in which it promised to pay to Contel the principal amount of $ 6.5 million. The principal amount of this Consolidation Note included and consolidated the principal balance of the Promissory Note that TPTC had executed in favor of Norstar on February 3, 1987, in the original principal amount of $ 4 million as well as the principal balance of an Additional Advance Note that TPTC had executed in favor of Contel in the original principal amount of $ 2.5 million. The terms of the Consolidation Note required that the outstanding principal balance bear interest at a rate of 9.9 percent through June 14, 1992, and 10.25 percent thereafter, that the interest on the outstanding principal amount be calculated on the basis of a 360-day year, that payments of principal and accrued interest be made monthly beginning*65 on July 15, 1987, and that any remaining balance of principal and accrued interest become due and payable on December 15, 1996.
Also on or about June 23, 1987, PK Ventures agreed to guarantee the loans between TBPC and Contel and between TPTC and Contel (collectively, the Contel debt) and to pledge all of the stock of TBPC, TPC, and TPTC to secure the Contel debt. In addition, TBPC, TPC, and TPTC agreed to encumber all of their assets to secure the Contel debt, and PK Ventures decided that TBPC, TPC, and TPTC no longer had to guarantee or to secure the first $ 1.3 million of outstanding principal on the $ 2.5 million revolving line of credit or any other indebtedness owed by SLPC, TBPC, TPC, or TPTC to Norstar. PK Ventures also decided that SLPC no longer had to guarantee or to secure the first $ 1.3 million of outstanding principal on the revolving line of credit.
PK Ventures, SLPC, TBPC, TPC, and TPTC (jointly referred to as petitioner PKV&S) filed consolidated Federal income tax returns for 1987 through 1993. Prior to 1990, PK Ventures, SLPC, TBPC, TPC, and TPTC each prepared separate financial statements. Beginning in 1990 and continuing through 1993, PK Ventures, SLPC, TBPC, *66 TPC, and TPTC prepared consolidated financial statements. These consolidated financial statements will be referred to as PKV&S's consolidated financial statements. Any references to PK Ventures in this Opinion should not be construed to include its subsidiaries.
Rose's Initial Receipt of an Equity Interest in PK Ventures
On or about August 19, 1987, PK Ventures adopted a resolution to amend its Certificate of Incorporation to increase the number of shares of stock that it was authorized to issue from 1,000 to 20,000. In connection with this amendment, the 150 shares of PK Ventures stock owned by Parker and the 36 shares of PK Ventures stock owned by Cerosky were redeemed by PK Ventures at a price of $ 0.50 per share. Also in connection with this amendment, Rose and the PK Ventures shareholders were given the opportunity to purchase 9,186 shares of PK Ventures stock at a price of $ 0.05 per share. As a result of these transactions, the stock of PK Ventures was owned in the following proportions as of August 19, 1987:
Total Shares Percentage of
Additional Owned After Shares Owned*67 After
Shareholder Shares Acquired Acquisition Acquisition
___________ _______________ ____________ __________________
McCarthy 7 10 .10%
Beason 14 20 .20
Grimmig 1,073 1,229 12.29
Kane 2,802 3,209 32.09
Kane Jr. 48 69 .69
Kirkwood 37 53 .53
Krutoy 1,101 1,261 12.61
Mannello 56 80 .80
Marshall 48 69 .69
Rose 4,000 4,000 40.00
______ _______ _______
Total 9,186 10,000 100.00
The Purchase of Zephyr
Zephyr, a Florida*68 corporation, operated as an S corporation during 1987. Zephyr's primary business was mining, processing, and selling limestone from a quarry that it owned in Pasco County, Florida. As of August 19, 1987, Zephyr's balance sheets showed that its current liabilities exceeded its current assets by $ 6,030,986.
Sometime before August 20, 1987, PK Ventures entered into a stock purchase agreement with Elli M.A. Mills (Mills) to purchase all of Zephyr's issued and outstanding stock. Prior to closing this agreement, it was decided that, for certain business and tax reasons, PK Ventures would assign its rights under the stock purchase agreement to 10 individuals -- Beason, Cerosky, Grimmig, Kane, Kane Jr., Krutoy, Mannello, Marshall, McCarthy, and Rose (collectively, the Zephyr purchasers) -- 9 of whom were shareholders of PK Ventures (i.e., Cerosky was no longer a shareholder of PK Ventures) and 9 of whom were associated with Printon Kane. McCarthy was neither a partner in nor an employee of Printon Kane.
On or about August 20, 1987, PK Ventures transferred $ 1 million to the Zephyr purchasers. Of this $ 1 million, Rose received $ 400,000. Rose and the other Zephyr purchasers used this $ *69 1 million to purchase Zephyr's stock from Mills, to cure delinquent payments to Zephyr's creditors, and to provide Zephyr with working capital. As of August 20, 1987, the Zephyr purchasers owned interests in Zephyr and in PK Ventures as follows:
Zephyr Shares Percentage of Percentage of
Shareholder Owned Zephyr Owned PK Ventures Owned
___________ _____________ _____________ _________________
Beason 36 .610% .20%
Cerosky 18 .305 0
Grimmig 708 12.000 12.29
Kane 1,451 24.593 32.09
Kane Jr. 177 3.000 .69
Krutoy 708 12.000 12.61
Mannello 177 3.000 .80
Marshall 177 3.000 .69
McCarthy 88 1.492 *70 .10
Rose 2,360 40.000 40.00
______ _______ _______
Total 5,900 100.000 99.47
PK Ventures obtained the $ 1 million that it transferred to the Zephyr purchasers from Summit Trust (Summit Trust loan). An entity named Printon Kane Government Securities pledged a $ 1 million certificate of deposit as collateral for the Summit Trust loan. PK Ventures accounted for the Summit Trust loan by crediting a liability account, "Due to Summit Trust", and debiting an asset account, "Due from Shareholders".
Also on or about August 20, 1987, PK Ventures and Zephyr agreed to enter into a Management and Guaranty Inducement Agreement. Under the terms of the Management and Guaranty Inducement Agreement, PK Ventures and Zephyr agreed that PK Ventures would provide certain management services to Zephyr, guarantee certain debts of Zephyr and the Zephyr purchasers, and indemnify Mills with respect to his existing guarantees of Zephyr's debt. In connection with the Management and Guaranty Inducement Agreement, PK Ventures agreed*71 to guarantee the following: (1) $ 500,000 of the purchase price to be paid by the Zephyr purchasers for Zephyr's stock; (2) payment of the amounts due under Zephyr's promissory note to NCNB National Bank of Florida in the original principal amount of $ 2,615,000; (3) payment of the amounts due under Zephyr's promissory note to Southeast Bank, N.A., in the principal amount $ 950,000; and (4) liabilities that Zephyr incurred in the ordinary course of its business.
On or about November 23, 1987, Summit Trust approved a 6-month renewal of the Summit Trust loan. The terms of the renewal required that the principal balance of the Summit Trust loan bear interest at a rate of 1.5 percent over the rate of the $ 1 million certificate of deposit being held as collateral, that payments of accrued interest be made monthly beginning on December 20, 1987, and that the principal balance and accrued interest become due and payable on May 20, 1988. On or about June 6, 1988, the Summit Trust loan was renewed until May 20, 1989, under terms similar to those contained in the renewal of November 23, 1987.
Transfers From PK Ventures, TBPC, and TPTC to Zephyr and Zephyr's Bankruptcy
After its acquisition*72 by the Zephyr purchasers in 1987, Zephyr continued to operate as a limestone mining business. During 1987 and 1988, Zephyr received transfers totaling $ 2,281,818 from the following sources:
Source Amount
______ ______
Printon Kane $ 1,450,000
PK Ventures 446,215
TBPC 263,296
TPTC 122,307
During 1988, Zephyr unsuccessfully attempted to obtain financing from ITT Commercial Finance Corp. and Tarmac Florida, Inc.
On December 6, 1988, Zephyr filed for bankruptcy under Chapter 11 of the Bankruptcy Code. Among the creditors listed in its bankruptcy documents were Printon Kane, PK Ventures, TBPC, and TPTC. The bankruptcy documents indicated that PK Ventures, TBPC, and TPTC had transferred $ 831,818 to Zephyr, as set forth above. PK Ventures, TBPC, and TPTC each filed claims in Zephyr's bankruptcy proceeding on September 12, 1989. Copies of canceled checks and promissory notes were attached to each of these claims as substantiation of the amounts owed.
Zephyr's bankruptcy was finalized in late*73 1989. Sometime between the time that the bankruptcy was finalized and the end of March 1990, a third party purchased Zephyr's assets, and the proceeds of that sale were distributed to specific secured and unsecured creditors of Zephyr. Neither Printon Kane, PK Ventures, TBPC, nor TPTC received any of those proceeds.
As of December 31, 1990, the general ledger account used by PK Ventures to account for certain transfers that it had made to Zephyr had a net or remaining balance of $ 64,888.
A. As Described in the Business's Financial Statements and
Income Tax Returns
1. 1987
No direct references were made and no explanations were provided in Zephyr's Form 1120S, U.S. Income Tax Return for an S Corporation, for 1987 as to the amounts that Zephyr received from Printon Kane, PK Ventures, TBPC, or TPTC during that year. On the Schedule L, Balance Sheets, attached to that return, Zephyr reported $ 6,961,306 of "Mortgages, notes, bonds payable in less than 1 year" and $ 902,669 of "Mortgages, notes, bonds payable in 1 year or more" as of the end of 1987. There were no amounts separately identified as interest payments made and/or imputed by Zephyr*74 to PK Ventures, TBPC, or TPTC on Zephyr's Form 1120S for 1987.
No direct references were made and no explanations were provided in PK Ventures, TBPC, or TPTC's financial statements for the year ended December 31, 1987, as to the amounts that PK Ventures, TBPC, and TPTC transferred to Zephyr during that year.
No direct references were made and no explanations were provided in PKV&S's consolidated income tax return for 1987 as to the amounts that PK Ventures, TBPC, and TPTC transferred to Zephyr during that year. There were also no amounts separately identified as interest payments received and/or imputed by PK Ventures, TBPC, or TPTC from Zephyr on PKV&S's consolidated income tax return for 1987.
2. 1988
No direct references were made and no explanations were provided in Zephyr's Form 1120S for 1988 as to the amounts that Zephyr received from Printon Kane, PK Ventures, TBPC, or TPTC during that year. On the Schedule L attached to that return, Zephyr reported $ 7,318,462 of "Mortgages, notes, bonds payable in less than 1 year", $ 677,132 of "Other current liabilities", and $ 730,189 of "Mortgages, notes, bonds payable in 1 year or more" as of the end of 1988. There*75 were no amounts separately identified as interest payments made and/or imputed by Zephyr to PK Ventures, TBPC, or TPTC on Zephyr's Form 1120S for 1988.
No direct references were made and no explanations were provided in PK Ventures, TBPC, or TPTC's financial statements for the year ended December 31, 1988, as to the amounts that PK Ventures, TBPC, and TPTC transferred to Zephyr during that year. Furthermore, no mention of Zephyr's bankruptcy was made in PK Ventures, TBPC, or TPTC's financial statements for the year ended December 31, 1988.
On the Schedule L attached to PKV&S's consolidated income tax return for 1988, TBPC and TPTC reported a total of $ 385,603 due from Zephyr under "Other assets" as of the end of that year. Of this amount, $ 263,296 was attributable to TBPC and $ 122,307 was attributable to TPTC. These amounts were described as "DUE FROM UNCONSOLIDATED SUBSIDIARIES". There were no amounts separately identified as interest payments received and/or imputed by PK Ventures, TBPC, or TPTC from Zephyr on PKV&S's consolidated income tax return for 1988.
3. 1989
No direct references were made and no explanations were provided in Zephyr's Form 1120S for*76 1989 as to the amounts that Zephyr received from Printon Kane, PK Ventures, TBPC, or TPTC during that year. Furthermore, no Schedule L was attached to this return. There were no amounts separately identified as interest payments made and/or imputed by Zephyr to PK Ventures, TBPC, or TPTC on Zephyr's Form 1120S for 1989.
No direct references were made and no explanations were provided in PK Ventures, TBPC, or TPTC's financial statements for the year ended December 31, 1989, as to the amounts that PK Ventures, TBPC, and TPTC transferred to Zephyr during that year. Furthermore, no mention of Zephyr's bankruptcy was made in PK Ventures, TBPC, or TPTC's financial statements for the year ended December 31, 1989.
PKV&S claimed a $ 953,652 bad debt deduction on its consolidated income tax return for 1989 for cash transfers that PK Ventures, TBPC, and TPTC had made to Zephyr. PKV&S did not attach to this return an explanation for claiming this bad debt deduction. On the Schedule L attached to PKV&S's consolidated income tax return for 1989, PK Ventures and its subsidiaries reported a total of $ 90,000 due from Zephyr under "Other assets" as of the end of that year. This amount was described*77 as "DUE FROM UNCONSOLIDATED SUBSIDIARIES". There were no amounts separately identified as interest payments received and/or imputed by PK Ventures, TBPC, or TPTC from Zephyr on PKV&S's consolidated income tax return for 1989.
4. 1990
On its Form 1120S for 1990, Zephyr represented that "No income or expense items where [sic] reported on the tax return due to the fact that the corporation was not solvent after the completion of the bankruptcy."
PKV&S claimed a $ 664,888 bad debt deduction on its consolidated income tax return for 1990 for cash transfers that PK Ventures, TBPC, and TPTC had made to Zephyr and for the cash transfers that PK Ventures had made to the nine Zephyr purchasers other than Rose. With respect to this bad debt deduction, $ 64,888 was attributable to the cash transfers that PK Ventures and/or its subsidiaries had made to Zephyr in prior years. PKV&S did not attach to this return an explanation for claiming this bad debt deduction.
B. Internal Revenue Service (IRS) Determinations
The IRS determined that PKV&S was not allowed to claim a bad debt deduction of $ 953,652 on its consolidated income tax return for 1989 for cash transfers*78 that PK Ventures and/or its subsidiaries had made to Zephyr because it had not established that a true debtor- creditor relationship was intended by these transfers. Furthermore, the IRS determined that, if a debt had been intended, PKV&S had not established that such debt had become worthless during 1989. The effect of this determination was to reduce the net operating loss carryover that PKV&S could report on its consolidated income tax return for 1990 (as amended) from $ 1,023,245 to $ 69,593. Accordingly, the IRS increased PKV&S's taxable income by $ 953,652 for 1990.
The IRS also determined that PKV&S was not allowed to claim a bad debt deduction of $ 64,888 on its consolidated income tax return for 1990 for cash transfers that PK Ventures and/or its subsidiaries had made to Zephyr because it had not established that a true debtor- creditor relationship was intended by these transfers. Furthermore, the IRS determined that, if a debt had been intended, PKV&S had not established that such debt had become worthless during 1990. Accordingly, the IRS increased PKV&S's taxable income by $ 64,888 for 1990.
The IRS determined that, with respect to the $ 64,888 of transfers from PK Ventures*79 and/or its subsidiaries to Zephyr for which PKV&S had claimed a bad debt deduction on its consolidated income tax return for 1990, 40 percent of that amount constituted a constructive dividend to the Roses in 1990. Consequently, the IRS increased the Roses' taxable income by $ 25,955 for 1990.
Rose's Acquisition of Control of PK Ventures and PKVI LP
At the beginning of 1990, PK Ventures was experiencing difficulty servicing its debt. On February 16, 1990, Kane, Kane Jr., Krutoy, Mannello, Rose, and PK Ventures executed a document entitled "Agreement" (debt service agreement) whereby PK Ventures agreed to repay the loans that it had outstanding with Norstar and Summit Trust according to the schedule set forth in that agreement. As of that date, PK Ventures had an $ 800,000 outstanding principal balance with respect to its $ 2.5 million revolving line of credit with Norstar and had not repaid the Summit Trust loan.
According to the schedule set forth in the debt service agreement, PK Ventures agreed to pay the outstanding principal balance of the $ 2.5 million revolving line of credit plus any accrued interest within 5 days from the date of the debt service agreement. Furthermore, *80 PK Ventures agreed to make a $ 400,000 payment on the Summit Trust loan at the earlier of September 30, 1990, or the date that Rose acquired a majority interest in PK Ventures. PK Ventures was to repay the remaining $ 600,000 of the Summit Trust loan at the loan's maturity date, 12 months from the date of the debt service agreement or as extended by Summit Trust. The debt service agreement also contained the following provision:
3.3 Compensation. Until October 1, 1990, Robert Rose's
salary, as Chief Executive Officer, will be fixed at $ 80,000 per
annum, payable bi-weekly.
The debt service agreement provided that PK Ventures was to borrow funds from Rose if it did not have sufficient funds to make the scheduled payments to Norstar and Summit Trust. If PK Ventures borrowed any funds from Rose, it was required to execute a promissory note in Rose's favor and to secure repayment of the loan by placing a priority lien (as permitted) on all of its assets. In addition, any such loans between Rose and PK Ventures were to be secured by an escalating pledge of the shares of PK Ventures' stock owned by Kane, Kane Jr., Krutoy, and Mannello in an amount identified*81 in a Pledge Agreement.
Certificates of deposit had been pledged as security for the loans that PK Ventures had taken out with Norstar and Summit Trust. Specifically, an $ 800,000 certificate of deposit secured the outstanding principal balance of the $ 2.5 million revolving line of credit and a $ 1 million certificate of deposit from Printon Kane Government Securities secured the Summit Trust loan. Under the terms of the debt service agreement, PK Ventures was to instruct Norstar and Summit Trust to release a like amount of the certificates of deposit that they had been holding as collateral to the receiving agent for Kane, Kane Jr., Krutoy, and Mannello as it made the scheduled payments to these institutions.
As contemplated by the debt service agreement, PK Ventures borrowed $ 800,000 from Rose on February 16, 1990, in order to make its scheduled payment to Norstar. Rose obtained a portion of the funds for this loan by placing a $ 675,000 mortgage on his New Jersey residence with First Fidelity Bank (First Fidelity). Rose gathered the remaining $ 125,000 for this loan from other sources. In exchange for this $ 800,000 loan, PK Ventures executed documents entitled "Promissory Note"*82 and "Security Agreement" in favor of Rose. The terms of the Promissory Note required that the principal amount bear interest at a rate equal to 3 percent above First Fidelity's stated prime rate, that PK Ventures make payments of accrued interest on a monthly basis beginning March 1, 1990, and that the principal balance become due and payable on September 30, 1990. In addition, Kane, Kane Jr., Krutoy, and Mannello executed a document entitled "Pledge Agreement" in favor of Rose. Under the terms of the Pledge Agreement, Kane, Kane Jr., Krutoy, and Mannello agreed to pledge 44 percent of their total shares of PK Ventures' stock to Rose in order to secure repayment of Rose's $ 800,000 loan to PK Ventures. As a result of entering into the Pledge Agreement, Kane, Kane. Jr., Krutoy, and Mannello pledged a combined total of 2,032.36 shares of PK Ventures' stock to Rose.
Also on February 16, 1990, Kane, Kane Jr., Krutoy, and Mannello executed a document entitled "Voting Trust Agreement" whereby they agreed to place all of their shares of PK Ventures' stock into a voting trust in exchange for voting trust certificates. The voting trust certificates indicated their ownership rights in the shares*83 of stock held by the trustee. Rose was designated as trustee of this voting trust and was given sole authority to vote the shares. As trustee of the voting trust, Rose had voting rights to 86.19 percent of the shares of PK Ventures' stock. (The Voting Trust Agreement granted Rose voting rights to 46.19 percent of PK Ventures' stock; he already held voting rights to 40 percent of the shares of PK Ventures' stock prior to becoming trustee of the voting trust.) The shares of PK Ventures' stock placed into the voting trust included the shares that had been pledged to Rose under the Pledge Agreement. The voting trust was to last for 21 years from February 16, 1990, unless terminated earlier by the death, resignation, or incapacity of Rose.
Also on February 16, 1990, Kane, Kane Jr., Krutoy, and Mannello executed documents entitled "Assignment" whereby they agreed to transfer all of their respective interests in PKVI LP to PK Ventures. In sum, they transferred a 17.748-percent limited partnership interest in PKVI LP to PK Ventures. With that transfer, PK Ventures held a 22.098-percent limited partnership interest and a 1-percent general partnership interest in PKVI LP.
PK Ventures satisfied*84 its obligation to Norstar with the $ 800,000 loan that it received from Rose. PK Ventures repaid this loan by making various cash payments to Rose and to First Fidelity.
On December 7, 1990, a document entitled "Stock Redemption Agreement" was executed by Cerosky (as a holder of an interest in PKVI LP), the shareholders of PK Ventures (i.e., Beason, Grimmig, Kane, Kane Jr., Kirkwood, Krutoy, Mannello, Marshall, McCarthy, and Rose), and PK Ventures. Under the terms of the Stock Redemption Agreement, (1) PK Ventures agreed to redeem a total of 5,295 shares of its stock from the shareholders of PK Ventures other than Rose (the withdrawing shareholders); (2) the withdrawing shareholders agreed to sell, assign, and transfer their ownership interests in all of PK Ventures' subsidiaries (i.e., SLPC, TBPC, TPC, and TPTC) to PK Ventures; and (3) Beason, Cerosky, Grimmig, Kirkwood, Marshall, and McCarthy agreed to transfer their ownership interests in PKVI LP to PK Ventures.
At the completion of the stock redemption on December 7, 1990, Kane and Rose were the only shareholders of PK Ventures, with Rose owning 85.016 percent of PK Ventures' outstanding shares. Rose and PK Ventures also became*85 the only owners of PKVI LP. In sum, Beason, Cerosky, Grimmig, Kirkwood, Marshall, and McCarthy transferred a 6.902-percent limited partnership interest in PKVI LP to PK Ventures. Consequently, as of December 7, 1990, PK Ventures owned a 1-percent general partnership interest and the entire 29-percent limited partnership interest in PKVI LP, and Rose owned a 70-percent general partnership interest in PKVI LP.
As consideration for the stock redemption and purchases described above, PK Ventures agreed to repay the Summit Trust loan based on the following schedule: $ 400,000 on December 7, 1990, $ 50,000 within 9 months of December 7, 1990, and $ 550,000 within 1 year of December 7, 1990. In addition, PK Ventures agreed to instruct Summit Trust to release a like amount of the $ 1 million certificate of deposit that it held as collateral for the Summit Trust loan to the receiving agent for the withdrawing shareholders with each scheduled payment that it made. The parties to the Stock Redemption Agreement also agreed as follows:
7.1 Release. The Company, Rose, and the Shareholders
acknowledge that there are certain obligations and indebtedness
existing between*86 Rose and the Company on the one hand and the
Shareholders on the other hand. It is the intent of the parties
in executing this Agreement that all such debts and obligations,
except as otherwise provided herein, be hereby expressly
extinguished. Accordingly, the Shareholders hereby release Rose
and the Company and the Company and Rose, jointly and severally,
release the Shareholders with respect to any and all claims
which the Shareholders on the one hand may have against Rose
and/or the Company (including obligations of the Company to
repay the indebtedness to Summit as set forth in the Agreement
among Rose, the Certificate Holders and the Company dated
February 16, 1990) or, respecting claims which Rose and/or the
company may have against the Shareholders excepting, as to all
parties, claims and obligations arising pursuant to this
Agreement, the * * * Pledge Agreement, the Voting Trust
Agreement, and any agreement executed in conjunction with this
Agreement * * *
In accordance with the Stock Redemption Agreement, Rose loaned $ 400,000 to PK Ventures on*87 December 7, 1990. Rose paid the $ 400,000 directly to Summit Trust. Rose refinanced his New Jersey home in order to obtain the funds for this loan. In exchange for the $ 400,000 loan, PK Ventures gave Rose a promissory note. PK Ventures accounted for the promissory note by debiting the liability account to Summit Trust and crediting the account "Due To/From PKV/RLR". PK Ventures repaid the $ 400,000 directly to Rose's mortgagee. The series of agreements executed on February 16, 1990, were amended, but not voided, by the Stock Redemption Agreement. Under the terms of the Stock Redemption Agreement, the 705 shares of PK Ventures' stock that were not redeemed from Kane remained subject to both the Voting Trust Agreement and the Pledge Agreement.
Also on December 7, 1990, Rose, PK Ventures, and the Printon Kane Group executed a document entitled "Agreement" (litigation agreement) whereby they agreed to share the litigation costs incurred to sue Raymond James & Associates. The litigation subject to the litigation agreement involved the business and activities of Zephyr. As a result of Zephyr's bankruptcy, the Zephyr purchasers had lost all of the cash that they had contributed to Zephyr.
*88 Transfers From PK Ventures to the Zephyr Purchasers
PK Ventures did not receive promissory notes from the Zephyr purchasers in exchange for the $ 1 million that it transferred to them. No accrued interest attributable to this transfer was posted to PK Ventures' general ledger or reported in its audited financial statements.
The Zephyr purchasers did not repay any portion of the $ 1 million that had been transferred to them from PK Ventures. PK Ventures neither took legal action against the Zephyr purchasers to force repayment of the $ 1 million transfer nor did it attempt to negotiate a partial collection of this amount with any of the Zephyr purchasers. PK Ventures issued Forms 1099 to each of the Zephyr purchasers reflecting cancellation of indebtedness income.
On August 5, 1991, the Roses sold their home in New Jersey for $ 422,500. The Roses purchased a home in Florida for $ 481,555 sometime between August 5, 1991, and March 16, 1992. The Roses paid the entire $ 481,555 purchase price with cash from their savings.
On December 31, 1991, PK Ventures' financial books and records indicated that Rose owed $ 437,469 to PK Ventures. This balance was reduced to zero by "reclassifying" *89 $ 400,000 as a bad debt attributable to Rose's portion of the $ 1 million that PK Ventures had transferred to the Zephyr purchasers and by "reclassifying" the remaining $ 37,469 as compensation expense attributable to Rose.
A. As Described in the Financial Statements and Income Tax
Returns for PK Ventures and PKV&S
Note 3 to PK Ventures' audited financial statements for the year ended December 31, 1987, stated: "The company has advanced $ 1,000,000 to the stockholders. This money was advanced for the sole purpose to acquire a company that would be compatible with the business objectives of the Company." The same statement was included in the notes to PK Ventures' financial statements for the years ended December 31, 1988, and December 31, 1989. A $ 1 million amount "Due from stockholders" was listed as an asset on PK Ventures' audited financial statements for the years ended December 31, 1987, December 31, 1988, and December 31, 1989, respectively.
A $ 1 million "Loans to stockholders" amount was listed as an asset on the Schedules L attached to PKV&S's consolidated income tax returns for 1987, 1988, and 1989. There were no amounts separately identified as interest*90 payments received and/or imputed by PK Ventures from the Zephyr purchasers on PKV&S's consolidated income tax returns for 1987 through 1989.
On its audited consolidated financial statements for the year ended December 31, 1990, PKV&S claimed a bad debt expense of $ 664,888, $ 600,000 of which was attributable to the transfers that PK Ventures had made to the nine Zephyr purchasers other than Rose. Note B to these financial statements offered the following explanation for PKV&S asserting a bad debt expense with respect to this $ 600,000 transfer:
The Company advanced $ 1,000,000 interest free to the
shareholders of the Company in 1987 which was invested in Zephyr
Rock & Lime, Inc. ("Zephyr"). In March 1990, Zephyr sold all its
assets and there were no funds left to distribute to
shareholders after paying liabilities. Thereupon the Company
ascertained that $ 600,000 of the advances to shareholders was
uncollectible and, accordingly, charged $ 600,000 to 1990
operations. The remaining balance of $ 400,000 at December 31,
1990 is due from the Company's majority shareholder and has been
netted against other*91 advances from the shareholder.
There is no explanation in these financial statements as to what the balance of the $ 664,888 bad debt expense was attributable.
PKV&S claimed a $ 664,888 bad debt deduction on its consolidated income tax return for 1990 for cash transfers that PK Ventures, TBPC, and TPTC had made to Zephyr and for the cash transfers that PK Ventures had made to the nine Zephyr purchasers other than Rose. With respect to this bad debt deduction, $ 600,000 was attributable to the cash transfers that PK Ventures had made to the nine Zephyr purchasers other than Rose. PKV&S did not attach to this return an explanation for claiming this bad debt deduction. There were no amounts separately identified as interest payments received and/or imputed by PK Ventures from the Zephyr purchasers on PKV&S's consolidated income tax return for 1990.
PKV&S claimed a bad debt expense of $ 1,712,151 on its audited consolidated financial statements for the year ended December 31, 1991. Of this amount, $ 400,000 was attributable to the transfer that PK Ventures had made to Rose in connection with the Zephyr purchase. Note 2 to these financial statements offered the following explanation*92 for PKV&S asserting a bad debt expense with respect to this $ 400,000 transfer:
The Company advanced $ 1,000,000 interest free to the
shareholders of the Company in 1987 which was invested in Zephyr
Rock & Lime, Inc. (Zephyr). In March 1990, Zephyr sold all its
assets and there were no funds left to distribute to
shareholders after paying liabilities. Thereupon the Company
ascertained that $ 600,000 of the advances to shareholders was
uncollectible and, accordingly, charged $ 600,000 to 1990
operations. The remaining balance of $ 400,000 at December 31,
1990 was due from the Company's majority shareholder and netted
1991, the remaining $ 400,000 was determined to be uncollectible
and charged to 1991 operations.
PKV&S claimed a $ 1,916,246 bad debt deduction on its consolidated income tax return for 1991 for the cash transfers that PK Ventures, TBPC, and TPTC had made to PKVI LP and for the cash transfer that PK Ventures had made to Rose in connection with the Zephyr purchase. With respect to this bad debt deduction, $ 400,000 was attributable to the transfer that PK Ventures had made to Rose*93 in connection with the Zephyr purchase. There were no amounts separately identified as interest payments received and/or imputed by PK Ventures from the Zephyr purchasers on PKV&S's consolidated income tax return for 1991.
B. As Described in the Roses' Income Tax Returns
There were no amounts separately identified as interest payments made and/or imputed by the Roses to PK Ventures on their joint income tax returns for 1990 or 1991. On their joint income tax return for 1991, the Roses reported $ 1,461,372 of cancellation of indebtedness income. The Roses reported that $ 400,000 of this amount was attributable to the transfer that PK Ventures had made to Rose in connection with the Zephyr purchase.
C. IRS Determinations
The IRS determined that PKV&S was not allowed to claim bad debt deductions of $ 600,000 and $ 400,000 on its consolidated income tax returns for 1990 and 1991, respectively, for the cash transfers that PK Ventures had made to the Zephyr purchasers because it had not established that a true debtor-creditor relationship was intended by these transfers. Furthermore, the IRS determined that, if a debt had been intended, PKV&S had not established*94 that such debt had become worthless during either 1990 or 1991. Accordingly, the IRS increased PKV&S's taxable income by $ 600,000 for 1990 and by $ 400,000 for 1991.
The IRS determined that PK Ventures' transfer of $ 400,000 to Rose in connection with the Zephyr purchase constituted a constructive dividend to him in 1990. Consequently, the IRS increased the Roses' taxable income by $ 400,000 for 1990 and determined that the Roses should not have reported $ 400,000 of cancellation of indebtedness income on their joint income tax return for 1991.
Transfers to PKVI LP
A. Transfers From Unrelated Parties to PKVI LP
At the time of its organization, PKVI LP was engaged in the acquisition of three hydroelectric projects that were located in or near Bynum, North Carolina; Henrietta, North Carolina; and Columbus, Georgia, respectively. A small portion of the acquisition of these three hydroelectric projects was financed by the initial capital contributions that were made to PKVI LP. During the years in issue, the bulk of PKVI LP's assets consisted of hydroelectric powerplant projects in North Carolina and Georgia. PKVI LP's debts to unrelated parties were generally nonrecourse*95 in nature and were secured by these hydroelectric properties.
As of December 31, 1986, PKVI LP had loan agreements outstanding with First Fidelity, Liberty Life Insurance Co. (Liberty Life), and Middle Georgia Fuel Products, Inc. (MGFP), as follows:
Outstanding
? Interest Principal Balance
Lender Maturity Date Rate as of 12/31/86
______ _____________ ________ _________________
First Fidelity Jan. 27, 1987 9.00% $ 200,000
Liberty Life Dec. 1, 1998 10.50 672,644
MGFP July 1, 1988 10.00 328,500
As of that date, the outstanding principal balances of the transfers associated with these agreements totaled $ 1,201,144.
Of this $ 1,201,144, $ 227,326 was listed as a current liability on the Statement of Financial Condition included in PKVI LP's audited financial statements for the year ended December 31, 1986, and as "Mortgages, notes, and bonds payable in less than 1 year" on the Schedule L attached to PKVI*96 LP's Form 1065, U.S. Partnership Return of Income, for 1986. The balance of this amount was listed as a long- term liability on the Statement of Financial Condition included in PKVI LP's audited financial statements for the year ended December 31, 1986, and as "Mortgages, notes, and bonds payable in 1 year or more" on the Schedule L attached to PKVI LP's Form 1065 for 1986.
As of December 31, 1987, PKVI LP had loan agreements outstanding with First Fidelity, Liberty Life, MGFP, and Trio Manufacturing Co. (Trio) as follows:
Outstanding
Interest Principal Balance
Lender Maturity Date Rate as of 12/31/87
______ _____________ ________ _________________
First Fidelity Feb. 1, 1988 10.50% $ 320,000
First Fidelity Feb. 1, 1988 10.25 15,000
Liberty Life Dec. 1, 1998 10.50 645,318
MGFP July 1, 1988 10.00 328,500
Trio Mar. 12, 1988 10.00 *97 517,500
As of that date, the outstanding principal balances of the transfers associated with these agreements totaled $ 1,826,318.
Of this $ 1,826,318, $ 1,213,953 was listed as a current liability on the Balance Sheet included in PKVI LP's audited financial statements for the year ended December 31, 1987, and as "Mortgages, notes, and bonds payable in less than 1 year" on the Schedule L attached to PKVI LP's Form 1065 for 1987. The balance of this amount was listed as a long-term liability on the Balance Sheet included in PKVI LP's audited financial statements for the year ended December 31, 1987, and as "Mortgages, notes, and bonds payable in 1 year or more" on the Schedule L attached to PKVI LP's Form 1065 for 1987.
As of December 31, 1988, PKVI LP had the following loan agreements outstanding:
Outstanding
Interest Principal Balance
Lender Maturity Date Rate as of 12/31/88
______ _____________ ________ _________________
Daley Corp. July 1, 1989 -- *98 $ 3,416
First Fidelity Jan. 18, 1989 11.50% 75,000
First Fidelity Jan. 18, 1989 12.00 50,000
Liberty Life Dec. 1, 1998 10.50 612,365
Liberty Life Apr. 1, 2001 10.70 800,000
Liberty Life Aug. 20, 2001 11.35 400,000
MGFP Mar. 31, 1990 10.00 328,500
As of that date, the outstanding principal balances of the transfers associated with these agreements totaled $ 2,269,281.
Of this $ 2,269,281, $ 193,060 was listed as a current liability on the Statement of Financial Condition included in PKVI LP's audited financial statements for the year ended December 31, 1988, and as "Mortgages, notes, and bonds payable in less than 1 year" on the Schedule L attached to PKVI LP's Form 1065 for 1988. The balance of this amount was listed as a long-term liability on the Statement of Financial Condition included in PKVI LP's audited financial statements for the year ended December 31, 1988, and as "Mortgages, notes, and bonds payable in 1 year or more" on the Schedule L attached to PKVI LP's Form 1065*99 for 1988.
As of December 31, 1989, PKVI LP had the following loan agreements outstanding:
Outstanding
Interest Principal Balance
Lender Maturity Date Rate as of 12/31/89
______ _____________ ________ _________________
First Fidelity Jan. 16, 1990 12.00% $ 125,000
MGFP Mar. 31, 1990 10.00 328,500
PKVI LP entered into the $ 125,000 loan agreement with First Fidelity on or before October 16, 1989.
PKVI LP also had the same loan agreements outstanding with Liberty Life on December 31, 1989, as it did on December 31, 1988. The outstanding principal balances of PKVI LP's loan agreements with Liberty Life totaled $ 1,778,241 as of December 31, 1989; $ 1,652,584 of this amount was treated as long-term debt on PKVI LP's audited financial statements for the year ended December 31, 1989, and the balance was treated as a current liability.
The outstanding principal balances of the transfers associated with the agreements described*100 in the preceding two paragraphs totaled $ 2,231,741 as of December 31, 1989. Of this amount, $ 579,157 was listed as a current liability on the Statement of Financial Condition included in PKVI LP's audited financial statements for the year ended December 31, 1989, and as "Mortgages, notes, and bonds payable in less than 1 year" on the Schedule L attached to PKVI LP's Form 1065 for 1989. The balance of this amount was listed as a long-term liability on the Statement of Financial Condition included in PKVI LP's audited financial statements for the year ended December 31, 1989, and as "Mortgages, notes, and bonds payable in 1 year or more" on the Schedule L attached to PKVI LP's Form 1065 for 1989.
PKVI LP renegotiated its loan agreement with MGFP during 1990. The renegotiated loan agreement between PKVI LP and MGFP was for the principal balance of $ 401,284, an amount that included the $ 328,500 principal balance from their original loan agreement plus $ 72,784 of accrued interest.
As of December 31, 1990, PKVI LP had the following loan agreements outstanding:
Outstanding
*101 Interest Principal Balance
Lender Maturity Date Rate as of 12/31/90
______ _____________ ________ _________________
Liberty Life Dec. 1, 1998 10.50% $ 559,372
Liberty Life Apr. 1, 2001 10.70 762,224
Liberty Life Aug. 20, 2001 11.35 387,716
MGFP Dec. 31, 1991 10.00 401,284
As of that date, the outstanding principal balances of the transfers associated with these agreements totaled $ 2,110,596.
On the Balance Sheet included in PKVI LP's audited financial statements for the year ended December 31, 1990, PKVI LP's "Current portion of long-term debt" was listed as $ 403,473, and its "LONG-TERM DEBT DUE AFTER ONE YEAR" was listed as $ 1,829,201. On the Schedule L attached to PKVI LP's Form 1065 for 1990, "Mortgages, notes, and bonds payable in less than 1 year" was listed as $ 425,000 as of the end of that year, and "Mortgages, notes, and bonds payable in 1 year or more" was listed as $ 1,685,596.
On February 15, 1991, PKVI LP and Liberty Life agreed to consolidate their three*102 outstanding loan agreements into one agreement. The principal balance of this consolidated loan agreement was $ 1,854,939, an amount that included the $ 1,709,312 of outstanding principal balances from the three original loan agreements between PKVI LP and Liberty Life plus $ 145,628 of accrued interest. The interest rate for this consolidated loan agreement was 10.78 percent, i.e., the weighted average of the interest rates from the original loan agreements.
PKVI LP experienced difficulties with its Georgia hydroelectric facilities, City Mills and Juliette, during 1991. As a result, PKVI LP defaulted on the loan agreement it had entered with MGFP to finance the Juliette facility. As noted above, PKVI LP and MGFP had renegotiated this loan agreement during 1990. In addition, PKVI LP failed to make the required payments of principal on its consolidated loan agreement with Liberty Life. These payments were scheduled to begin on August 15, 1991.
As of December 31, 1991, PKVI LP had the following loan agreements outstanding:
Outstanding
Interest Principal*103 Balance
Lender Maturity Date Rate as of 12/31/91
______ _____________ ________ _________________
Liberty Life Aug. 15, 2003 10.78% $ 1,854,939
MGFP Dec. 31, 1991 10.00 401,284
As of that date, the outstanding principal balances of the transfers associated with these agreements totaled $ 2,256,223.
PKVI LP's financial statements for the year ended December 31, 1991, are not part of the record in these cases. On the Balance Sheets included in PKVI LP's reviewed financial statements for the year ended December 31, 1992, PKVI LP's total and current liabilities were listed as $ 2,334,551 as of December 31, 1991. The $ 2,334,551 included $ 2,256,223 for long-term debt in default, $ 76,058 for accrued expenses, and $ 2,270 for accounts payable. On the Schedule L attached to PKVI LP's Form 1065 for 1991, $ 2,256,223 was listed under "Mortgages, notes, and bonds payable in less than 1 year" as of the end of that year.
As of December 31, 1992, PKVI LP had loan agreements outstanding with Liberty Life and MGFP. As of that date, the outstanding principal balances*104 of the transfers associated with these agreements remained $ 2,256,223. This entire amount was listed as a current liability on the Balance Sheets included in PKVI LP's reviewed financial statements for the year ended December 31, 1992. On the Schedule L attached to PKVI LP's Form 1065 for 1991, $ 335,448 was listed under "Mortgages, notes, and bonds payable in less than 1 year" as of the end of that year, and $ 2,528,779 was listed under "All nonrecourse loans".
As of December 31, 1993, the loan agreement that PKVI LP had with Liberty Life remained outstanding. As of that date, the outstanding principal balance of this loan agreement remained $ 1,854,939. This entire amount was listed as a current liability on the Balance Sheets included in PKVI LP's reviewed financial statements for the year ended December 31, 1993. There was no Schedule L attached to PKVI LP's Form 1065 for 1993.
B. Transfers From PK Ventures and/or Its Subsidiaries to PKVI
LP
Between 1986 and the end of 1991, PK Ventures, TBPC, and TPTC made cash transfers to PKVI LP. On PK Ventures' general ledger, these transfers were treated as loans. Rose executed one-page documents entitled "Promissory*105 Note" (PKVI LP promissory note) with respect to some, but not all, of these transfers. The terms of the PKVI LP promissory notes required that (1) the transfers be repaid on demand with an interest rate of either 8.75 or 9 percent; (2) payment of interest was due only with the payment of principal; and (3) payment of principal was not to be made if payment to PK Ventures would have caused PKVI LP to default or breach any other note or agreement to which PKVI LP was a party. This last provision subordinated PK Ventures' right to demand payment of the transfers to the rights of PKVI LP's creditors. Unlike the basic structure of PKVI LP's debt to unrelated parties, the PKVI LP promissory notes were not secured by the hydroelectric properties owned by PKVI LP. The PKVI LP promissory notes were signed by Rose alone; they were neither attested to by a witness nor notarized.
On December 31, 1989, Rose executed a PKVI LP promissory note in favor of PK Ventures in which PKVI LP promised to pay PK Ventures the principal amount of $ 448,646 ($ 448,646 promissory note). The $ 448,646 promissory note reflected the aggregate amount of cash that had been transferred from PK Ventures, TBPC, and TPTC*106 to PKVI LP from 1986 through 1989.
PK Ventures, TBPC, and TPTC made cash transfers to PKVI LP totaling $ 647,605 during 1990. On December 31, 1990, Rose executed a PKVI LP promissory note in favor of PK Ventures in which PKVI LP promised to pay PK Ventures the principal amount of $ 1,096,250 ($ 1,096,250 promissory note). The $ 1,096,250 promissory note reflected the aggregate amount of cash that had been transferred from PK Ventures, TBPC, and TPTC to PKVI LP from 1986 through 1990.
PK Ventures, TBPC, and TPTC made transfers to PKVI LP totaling $ 419,995 during 1991. On December 31, 1991, Rose executed a PKVI LP promissory note in favor of PK Ventures in which PKVI LP promised to pay PK Ventures the principal amount of $ 1,516,246 ($ 1,516,246 promissory note). The $ 1,516,246 promissory note reflected the aggregate amount of cash that had been transferred from PK Ventures, TBPC, and TPTC to PKVI LP from 1986 through 1991. At the time that Rose signed the $ 1,516,246 promissory note, he did not intend to have PKVI LP repay any of this amount to PK Ventures. In addition, Rose, as a general partner with a 70-percent interest in PKVI LP, did not intend to repay any of this amount to*107 PK Ventures at the time that he signed the $ 1,516,246 promissory note.
No legal action was taken by PK Ventures against Rose to force repayment of the $ 1,516,246 promissory note. Rose owned approximately 85 percent of the stock of PK Ventures during 1991.
In a letter dated July 6, 1992, to Douglas W. Kroske, C.F.A., senior vice president of Liberty Capital Advisors, Inc., Rose made the following statements concerning the transfers from PK Ventures, TBPC, and TPTC to PKVI LP:
Since 1986, PK Ventures Inc has invested over $ 1.5 million in
these hydroelectric projects, and is willing to continue but
needs some help from Liberty Life. * * *
* * * * * * *
There has been a delay on the financial statements for the year
ending 12/31/91. During the year based on Ernst & Young's
review, $ 419,996 cash was provided to the Partnership from PK
Ventures, Inc. Since inception to 12/31/91 a total amount of
$ 1,516,246 has been injected, and our auditors are now going to
make PK Ventures Inc write this off as it is an uncollectible
claim against the Partnership.*108 The $ 419,996 cash of 1991, was
used approximately for equipment and Bynum canal repairs of
$ 225,661, and the balance used in payments to Liberty Life.
1. As Described in the Business's Financial Statements
and Income Tax Returns
a. 1986
No direct references were made and no explanations were provided in PKVI LP's audited financial statements for the year ended December 31, 1986, as to the amounts that PKVI LP received from PK Ventures during that year.
On PK Ventures' Schedule K-1, Partner's Share of Income, Credits, Deductions, etc., attached to PKVI LP's Form 1065 for 1986, PK Ventures was reported to have made a $ 500 capital contribution to PKVI LP during that year and to have a capital account with a balance of $ 242 as of the end of that year. No other direct references were made and no other explanations were provided in PKVI LP's Form 1065 for 1986 as to the amounts that PKVI LP received from PK Ventures during that year. There were also no amounts separately identified as interest payments made and/or imputed by PKVI LP to PK Ventures on its Form 1065 for 1986.
On the Statement of Financial*109 Condition included in PK Ventures' audited financial statements for the year ended December 31, 1986, a $ 242 "Investment in affiliated partnership" was listed as an asset. This entry referred to PK Ventures' investment in PKVI LP. The $ 242 was listed under "Other investments" on the Schedule L attached to PK Ventures' income tax return for 1986. No other direct references were made and no other explanations were provided in PK Ventures' financial statements for 1986 as to the amounts that it transferred to PKVI LP during that year.
No direct references were made and no explanations were provided in PK Ventures' income tax return for 1986 as to the amounts that it transferred to PKVI LP during that year. There were no amounts separately identified as interest payments received and/or imputed by PK Ventures from PKVI LP on PK Ventures' income tax return for 1986.
b. 1987
No direct references were made and no explanations were provided in PKVI LP's financial statements for 1987 as to the amounts that PKVI LP received from PK Ventures, TBPC, or TPTC during that year. On the Balance Sheet included in PKVI LP's audited financial statements for the year ended*110 December 31, 1987, $ 48,300 "Due to affiliated company" was listed as a current liability.
No direct references were made and no explanations were provided in PKVI LP's Form 1065 for 1987 as to the amounts that PKVI LP received from PK Ventures, TBPC, or TPTC during that year. On the Schedule L attached to PKVI LP's Form 1065 for 1987, $ 48,300 was listed under "Other liabilities" as of the end of that year. There were no amounts separately identified as interest payments made and/or imputed by PKVI LP to PK Ventures, TBPC, or TPTC on its Form 1065 for 1987.
No direct references were made and no explanations were provided in PK Ventures, TBPC, or TPTC's financial statements for the year ended December 31, 1987, as to the amounts that PK Ventures, TBPC, and TPTC transferred to PKVI LP during that year.
No direct references were made and no explanations were provided in PKV&S's consolidated income tax return for 1987 as to the amounts that PK Ventures, TBPC, and TPTC transferred to PKVI LP during that year. There were no amounts separately identified as interest payments received and/or imputed by PK Ventures, TBPC, or TPTC from PKVI LP on PKV&S's consolidated income tax return for*111 1987.
c. 1988
Note 4 to PKVI LP's audited financial statements for the year ended December 31, 1988, stated, in pertinent part: "At December 31, 1988, the Partnership owed $ 20,580 to P.K. Ventures, Inc. and $ 105,978 to affiliated entities which are respectively owned by the Partnerships' general partners." On the Statement of Financial Condition included in PKVI LP's audited financial statements for the year ended December 31, 1988, $ 126,558 "Due to affiliated company" was listed as a current liability.
On the Schedule L attached to PKVI LP's Form 1065 for 1988, $ 126,558 "Due to Affiliated Company" was listed under "Other current liabilities" as of the end of that year. There were no amounts separately identified as interest payments made and/or imputed by PKVI LP to PK Ventures, TBPC, or TPTC on its Form 1065 for 1988.
No direct references were made and no explanations were provided in PK Ventures, TBPC, or TPTC's financial statements for the year ended December 31, 1988, as to the amounts that PK Ventures, TBPC, and TPTC transferred to PKVI LP during that year.
On the Schedule L attached to PKV&S's consolidated income tax return for 1988, PK Ventures, *112 TBPC, and TPTC reported $ 118,558 due from PKVI LP under "Other assets" as of the end of that year. Of this amount, $ 20,580 was attributable to PK Ventures, $ 48,000 was attributable to TBPC, and $ 49,978 was attributable to TPTC. There were no amounts separately identified as interest payments received and/or imputed by PK Ventures, TBPC, or TPTC from PKVI LP on PKV&S's consolidated income tax return for 1988.
d. 1989
Note 4 to PKVI LP's audited financial statements for the year ended December 31, 1989, stated, in pertinent part: "At December 31, 1989, the Partnership owed $ 448,646 to P.K. Ventures, Inc. and $ 107,978 to companies affiliated with P.K. Ventures, Inc." On the Statement of Financial Condition included in PKVI LP's audited financial statements for the year ended December 31, 1989, $ 556,624 "Due to affiliated company" was listed as a liability.
No direct references were made and no explanations were provided in PKVI LP's Form 1065 for 1989 as to the amounts that PKVI LP received from PK Ventures, TBPC, or TPTC during that year. On the Schedule L attached to PKVI LP's Form 1065 for 1989, $ 556,624 "Due to Affiliated Company" was listed under*113 "Other current liabilities" as of the end of that year. There were no amounts separately identified as interest payments made and/or imputed by PKVI LP to PK Ventures, TBPC, or TPTC on its Form 1065 for 1989.
No direct references were made and no explanations were provided in PK Ventures, TBPC, or TPTC's financial statements for the year ended December 31, 1989, as to the amounts that PK Ventures, TBPC, and TPTC transferred to PKVI LP during that year. On the Schedule L attached to PKV&S's consolidated income tax return for 1989, PK Ventures and its subsidiaries reported $ 556,624 due from PKVI LP under "Other assets" as of the end of that year. There were no amounts separately identified as interest payments received and/or imputed by PK Ventures, TBPC, or TPTC from PKVI LP on PKV&S's consolidated income tax return for 1989.
e. 1990
Contrary to the terms of the PKVI LP promissory notes, Note D to PKVI LP's audited financial statements for the year ended December 31, 1990, stated that the transfers that had been received by PKVI LP from PK Ventures (totaling $ 1,096,250) did not bear interest. Note D also stated that there was no stated maturity date with*114 respect to these transfers and that PKVI LP anticipated that it would repay PK Ventures when cash was available. On the Balance Sheets included in these financial statements, $ 1,096,250 "DUE TO AFFILIATED COMPANY" was listed as a liability.
On the Schedule L attached to PKVI LP's Form 1065 for 1990, $ 1,096,250 "DUE TO AFFILIATED COMPANIES" was listed under "Other liabilities" as of the end of that year. On its Form 1065 for 1990, PKVI LP reported imputed interest payments totaling $ 67,772. There were no amounts separately identified as interest payments made and/or imputed by PKVI LP to PK Ventures, TBPC, or TPTC on its Form 1065 for 1990.
Note C to the audited consolidated financial statements of PKV&S for the year ended December 31, 1990, stated the following:
The Company has a receivable of $ 1,096,250 from PK Ventures I
Limited Partnership ("LTD") in which it has a 1% general
partnership interest and a 29% limited partnership interest. The
Company's investment in and advances to LTD have been reduced by
$ 75,000 under the equity method of accounting. At December 31,
1990, LTD has a deficit of $ 667,000 and incurred a net loss*115 of
$ 262,000 in 1990. The management of LTD is completing
construction of certain operating facilities and believes that
LTD will become profitable in the future and be able to repay
the advances from the Company. The collectibility of the
receivable is dependent upon future events which cannot be
predicted at this time.
On the Consolidated Balance Sheets included in these financial statements, $ 1,027,577 for "INVESTMENT IN AND ADVANCES TO LIMITED PARTNERSHIPS" was listed as an asset. Of the $ 1,027,577, $ 1,021,250 was attributable to an amount "Due from Limited Partnership" for PK Ventures and $ 6,327 was attributable to an "Investment in limited partnerships" by TPC. On the Consolidated Statements of Cash Flows included in these financial statements, $ 539,626 for "Advances to limited partnership" was listed under investing activities.
On the Schedule L attached to PKV&S's consolidated income tax return for 1990, PK Ventures reported $ 1,116,250 due from PKVI LP under "Other current assets" as of the end of that year. On its consolidated income tax return for 1990, PKV&S reported that PK Ventures had imputed interest payments from*116 PKVI LP under
f. 1991
PKVI LP's financial statements for the year ended December 31, 1991, are not part of the record in these cases.
On the Schedule L attached to PKVI LP's Form 1065 for 1990, no amount "DUE TO AFFILIATED COMPANIES" was listed under "Other liabilities" as of the end of that year. On its Form 1065 for 1991, PKVI LP reported imputed interest payments totaling $ 100,661. There were no amounts separately identified as interest payments made and/or imputed by PKVI LP to PK Ventures, TBPC, or TPTC on its Form 1065 for 1991.
PKV&S claimed a bad debt expense of $ 1,712,151 on its audited consolidated financial statements for the year ended December 31, 1991. Of this amount, $ 1,312,151 was attributable to the transfers that PK Ventures had made to PKVI LP in 1991 and prior years. Note 3 to these financial statements offered the following explanation for PKV&S' claiming a bad debt expense with respect to these transfers:
At December 31, 1990, the Company had made $ 1,096,250 of
noninterest-bearing advances to PK Ventures I Limited
Partnership (LTD) in which it has a 1% general partnership
*117 interest and a 29% limited partnership interest. The Company
made additional advances to LTD in 1991 of $ 419,996, principally
to fund operating losses. Management of the Company believes
that recovery of its advances to and investment in LTD is
unlikely and, accordingly, has forgiven advances amounting to
$ 1,312,151 in 1991 and charged bad debts expense. The Company
also recorded losses under the equity method of $ 129,095 in 1991
and $ 75,000 in 1990.
PKV&S claimed a $ 1,916,246 bad debt deduction on its consolidated income tax return for 1991 for the cash transfers that PK Ventures, TBPC, and TPTC had made to PKVI LP and for the cash transfer that PK Ventures had made to Rose in connection with the Zephyr purchase. With respect to this bad debt deduction, PKV&S reported that $ 1,516,246 was attributable to the $ 1,516,246 promissory note's being uncollectible. On its consolidated income tax return for 1991, PKV&S reported that PK Ventures had imputed interest payments from PKVI LP under
g. 1992
The reviewed financial statements of PKVI LP for the year ended*118 December 31, 1992, indicate that PK Ventures, as PKVI LP's sole limited partner, continued to transfer funds to PKVI LP during 1992. Note 4 to these financial statements stated the following:
At December 31, 1991, the general partner, P K Ventures, Inc.
forgave advances totaling $ 1,516,246. At December 31, 1992, the
Partnership owed the limited partner $ 335,448 in the form of
demand notes at 9% interest. These notes cannot be repaid if
such payment causes defaults with regard to other debt
agreements. Interest of $ 10,645 was incurred but not paid during
1992 related to these notes.
On the Balance Sheets included in these financial statements, $ 335,448 for "Notes payable to limited partner" was listed as a current liability.
On the Consolidated Statements of Cash Flows included in PKV&S's audited consolidated financial statements for the year ended December 31, 1992, there was no amount listed for "Advances to limited partnership" under the "Investing activities" section. Note 3, "Due From Limited Partnership", to these financial statements does not mention that any transfers had been made from PK Ventures to PKVI LP*119 during 1992.
h. 1993
PKVI LP's reviewed financial statements for the year ended December 31, 1993, indicate that PKVI LP received transfers from PK Ventures totaling $ 242,073 during 1993. Note 4 to PKVI LP's reviewed financial statements for the year ended December 31, 1993, stated: "At December 31, 1993, the Partnership owed one limited partner $ 577,521 in the form of demand notes at interest rates ranging from 8% to 9%. Interest of $ 31,201 and $ 10,645 was incurred but not paid during 1993 and 1992, respectively." On the Balance Sheets included in these financial statements, $ 577,521 for "Notes payable to limited partner" was listed as a current liability.
On the Consolidating Balance Sheet included in PKV&S's audited consolidated financial statements for the year ended December 31, 1993, there were no amounts listed as "Due from affiliated partnership" or as "Investments in limited partnerships" with respect to PK Ventures.
2. IRS Determinations
The IRS determined that PKV&S should not have imputed $ 67,772 of interest income from PKVI LP on its consolidated income tax return for 1990 or $ 100,661 of interest income from PKVI*120 LP on its consolidated income tax return for 1991 because the cash transfers that PK Ventures had made to PKVI LP were contributions to capital instead of loans. Accordingly, the IRS decreased PKV&S's interest income by $ 67,772 for 1990 and by $ 100,661 for 1991.
The IRS also determined that PKV&S was not allowed to claim a bad debt deduction of $ 1,516,246 on its consolidated income tax return for 1991 for cash transfers that PK Ventures and/or its subsidiaries had made to PKVI LP because these transfers were contributions to capital instead of loans. Alternatively, the IRS determined that, if these transfers were not contributions to capital, they were made for the benefit of the partners of PKVI LP and, thus, were distributions to the partners. As a further alternative, the IRS determined that, if these transfers were bona fide loans, the bad debt deduction should not be allowed because PKV&S had not established that the debt had become worthless during 1991. Accordingly, the IRS increased PKV&S's taxable income by $ 1,516,246 for 1991.
The IRS determined that PKVI LP should not have imputed $ 100,661 of interest expense to PK Ventures on its Form 1065 for 1991 because it had*121 not been established that the interest expense was attributable to a bona fide debt. Rather, the IRS determined that the funds that had been transferred from PK Ventures and/or its subsidiaries to PKVI LP were capital contributions. Accordingly, the IRS increased PKVI LP's ordinary income by $ 100,661 for 1991.
The IRS determined that the cash transfers that had been made by PK Ventures and/or its subsidiaries to PKVI LP were made on behalf of the Roses and that the transfers constituted constructive dividends to them. After making certain concessions, the IRS determined that the Roses should have reported a constructive dividend of $ 411,338 on their joint income tax return for 1990 and a constructive dividend of $ 293,997 on their joint income tax return for 1991. Accordingly, the IRS increased the Roses' taxable income by $ 411,338 for 1990 and by $ 293,997 for 1991.
The IRS notified the Roses that, with respect to 1991, PKVI LP was subject to partnership-level proceedings pursuant to the partnership audit and litigation procedures of
Other Circumstances Surrounding PK Ventures' Operations and Financial Arrangements
A. Going Concern Notes in the Business's Financial
Statements
1. PK Ventures, SLPC, TBPC, and TPTC
Note 10 to PK Ventures' audited financial statements for the year ended December 31, 1989, set forth the going concern position of the corporation. Note 10 stated, in pertinent part, the following with respect to the corporation's financial status: "Management's plans include several steps which may mitigate the current adverse financial condition. * * * The Company's management extended payment terms related to certain accrued payables such as officer's salaries, indefinitely, subject to cash availability." The notes to SLPC, TBPC, and TPTC's audited financial statements for the year ended December 31, 1989, also include "going concern" notes that state that each corporation's management had "extended payment terms related to certain accrued payables such as officer's salary, indefinitely, subject to cash availability. *123 " No corporate resolutions and/or other agreements by PK Ventures, SLPC, TBPC, or TPTC set forth the terms of these extended payment arrangements.
2. PKVI LP
Note 8 to PKVI LP's audited financial statements for the year ended December 31, 1989, set forth the going concern position of the partnership. Note 8 stated the following with respect to the partnership's financial status: "Management's plans include several steps which may mitigate the current adverse financial condition. These steps include renegotiation and reduction of short term debt * * * and reduction of certain operating costs."
Note E to PKVI LP's audited financial statements for the year ended December 31, 1990, set forth the going concern position of the partnership. Note E stated, in pertinent part, the following with respect to the partnership's financial status:
The Partnership's financial statements have been presented on a
going concern basis which contemplates the realization of assets
and the satisfaction of liabilities in the normal course of
business. At December 31, 1990, partners' capital is in a
deficit position of $ 667,182. Management plans*124 to mitigate the
current adverse financial position by restoring one of its
plants to operating condition during 1991 and completing
construction projects on two hydroelectric plants which are not
yet operational to generate revenues. In addition, P.K.
Ventures, Inc., the general and a limited partner, will continue
to advance cash to the Partnership as needed. * * *
Note 6 to PKVI LP's reviewed financial statements for the year ended December 31, 1992, set forth the going concern position of the partnership. Note 6 stated, in pertinent part, the following with respect to the partnership's financial status:
The Partnership's financial statements have been presented on a
going-concern basis which contemplates the realization of assets
and the satisfaction of liabilities in the normal course of
business. Cash flow deficits and capital needs were supplied and
funded in 1991 by P K Ventures, Inc. In 1992, cash flow deficits
and capital needs were funded by a loan from the limited
partner. Management is exploring the possibility of
renegotiating higher rates on the sales of*125 power and intends to
maintain tight expense control at all three of its operational
plants. The Partnership may be able to obtain additional funding
from the limited partner. Management is also exploring a
possible reorganization or merger. The outcome of these matters
cannot be predicted at this time.
Note 6 to PKVI LP's reviewed financial statements for the year ended December 31, 1993, set forth the going concern position of the partnership. Note 6 stated, in pertinent part, the following with respect to the partnership's financial status:
The Partnership's financial statements have been presented on a
going-concern basis which contemplates the realization of assets
and the satisfaction of liabilities in the normal course of
business. Cash flow deficits and capital needs were funded in
1993 and 1992 by loans from the limited partner. Management is
also exploring a possible reorganization or merger. The outcome
of these matters cannot be predicted at this time.
B. Litigation Involving SLPC, TBPC, and TPTC
A majority of PK Ventures' income was generated by the operations*126 of its pipeline subsidiaries (i.e., SLPC, TBPC, TPC, and TPTC). PK Ventures' largest investments were in TBPC and TPTC.
As of December 31, 1991, SLPC, TBPC, and TPTC were all litigating separate matters. The matters being litigated affected the corporations' revenue streams. In particular, TBPC did not receive any of the $ 483,000 of lease payments that it was owed by Royster between April 1991 and June 1992. In addition, SLPC's pipeline was taken out of service sometime prior to January 1, 1992, for environmental reasons.
There were no direct references made to this litigation in PKV&S's audited consolidated financial statements for the year ended December 31, 1991. Note 5 of these financial statements, however, stated, in pertinent part, that: "The Company has not repaid $ 1,300,000 of subordinated notes payable to the former shareholders of its subsidiaries pending the resolution of various claims against the former shareholders."
C. Transfers From Rose to PK Ventures
As of the beginning of October 1992, PK Ventures owed $ 1.3 million to the TPTC sellers. This amount was to have been paid by January 1, 1992. This debt was settled in October 1992 when PK Ventures agreed*127 to pay the TPTC sellers $ 590,000. Rose transferred the $ 590,000 to PK Ventures in October 1992 so that it could pay the TPTC sellers. PK Ventures was relieved of the remaining balance of this $ 1.3 million debt.
In sum, Rose made cash transfers to PK Ventures totaling $ 990,000 during 1992. Of this $ 990,000, Rose transferred $ 940,000 during the last quarter of 1992. PK Ventures executed documents that were identical to the PKVI LP promissory notes described above in favor of Rose with respect to these transfers. These documents were signed by Rose alone; they were neither attested to by a witness nor notarized.
During 1993, Rose made cash transfers to PK Ventures and its subsidiaries totaling $ 2,863,500. Note 3 to PKV&S's audited consolidated financial statements for the year ended December 31, 1993, stated the following with respect to these transfers:
Notes payable to shareholder represent cash advances contributed
to the Company by the major shareholder for operations. The
notes bear interest at 12% and are due on demand. The
shareholder advanced $ 2,863,500 and $ 990,000 to the Company
during 1993 and 1992, respectively.
*128 Interest expense on notes payable to shareholder was $ 292,350
and $ 19,313 during 1993 and 1992, respectively.
Rose's Wages for 1986 Through 1993
The following table breaks down the percentage of time that Rose devoted to his duties for Printon Kane and/or the Printon Kane Group, PK Ventures and its subsidiaries, PKVI LP, and Zephyr during 1986 through 1993:
Printon Kane/ PK Ventures and
Year Printon Kane Group Subsidiaries PKVI LP Zephyr
____ __________________ _______________ _______ ______
1986 40% 50% 10% --
1987 20 40 10 30%
1988 15 40 15 30
1989 15 50 15 20
1990 -- 78 15 7
1991 -- 85 15 --
1992 -- 85 15 --
1993*129 -- 85 15 --
During these years, Rose routinely worked long hours and rarely took vacations.
PK Ventures reported the following amounts from its operations on its income tax return for 1986, and PKV&S reported the following amounts from its operations on its consolidated income tax returns for 1987 through 1993:
Gross Receipts Total Income Net Income
Year or Sales Gross Profit (Loss) (Loss)
____ ______________ ____________ ____________ __________
1986 -- -- ($ 1,307) ($ 9,318)
1987 $ 3,054,478 $ 3,054,478 3,569,218 (228,055)
1988 4,026,675 2,805,981 3,217,948 579,061
1989 4,457,954 3,368,325 3,700,349 (43,069)
1990 5,300,792 4,620,576 4,815,805 650,781
1991 5,002,606 4,490,177 5,783,636 1,037,967
1992 4,777,238 4,193,245 4,775,526 802,979
1993 *130 4,638,025 3,884,120 4,591,313 230,435
PKVI LP reported the following amounts from its operations on its Forms 1065 for 1986 through 1993:
Ordinary
Income (Loss)
Gross Receipts Total Income From Business
Year or Sales Gross Profit (Loss) Activities
____ ______________ ____________ ____________ _____________
1986 $ 11,093 $ 11,093 $ 12,488 ($ 132,332)
1987 158,501 61,358 61,358 (203,653)
1988 151,381 28,755 28,755 (346,069)
1989 227,616 35,120 35,120 (495,274)
1990 144,153 (260,619) (260,619) (603,756)
1991 61,071 (183,635) (181,635) (604,235)
1992 100,250 100,250 100,250 (839,738)
1993 101,703 *131 101,703 101,703 (627,306)
Zephyr reported the following amounts from its operations on its Forms 1120S for 1987 through 1989: %
Ordinary
Income (Loss)
Gross Receipts Total Income From Business
Year or Sales Gross Profit (Loss) Activities
____ ______________ ____________ ____________ _____________
1987 $ 1,623,593 ($ 211,807) ($ 85,237) ($ 964,830)
1988 2,022,492 (569,839) (563,666) (1,993,131)
1989 516,969 (1,117,281) (1,117,281) (1,628,388)
In addition to the wages discussed below, PK Ventures provided health insurance to Rose and his family during the years in issue. Sometime in 1991, PK Ventures purchased a Honda Civic and provided that car to Rose. PK Ventures replaced the Honda Civic with a Mercedes Benz in 1993 and provided the Mercedes Benz to Rose throughout that year and the remaining years in issue. Rose determined that PK*132 Ventures would not provide him with any retirement benefits.
A. Wages Received From Printon Kane and the Printon Kane
Group
Rose's salaries from Printon Kane during 1986, 1987, and 1988 were $ 65,000, $ 67,500, and $ 65,000, respectively. In 1989, Rose received salaries from Printon Kane and the Printon Kane Group totaling $ 34,423 and $ 12,115, respectively. In 1990, Rose received a salary from the Printon Kane Group totaling $ 6,923. Rose did not receive any compensation from either Printon Kane or the Printon Kane Group after 1990.
B. Wages Recorded on PK Ventures' Books and Records
PK Ventures' general ledger for 1990 indicated that, during 1990, PK Ventures paid Rose compensation totaling $ 350,000. PK Ventures' general ledger for 1990 also indicated that, of this $ 350,000, PK Ventures had accrued $ 65,000 prior to 1990 and that SLPC, TBPC, and TPTC had accrued the balance prior to and during 1990 in the following proportions:
Total
Compensation Portion Attributable To:
Year Accrued SLPC TBPC TPTC
____ ____________ ____ ____ *133 ____
1987 $ 75,000 $ 15,000 $ 30,000 $ 30,000
1988 75,000 15,000 30,000 30,000
1989 75,000 15,000 30,000 30,000
1990 60,000 -- 30,000 30,000
_______ _______ _______ _______
Total 285,000 45,000 120,000 120,000
As of December 31, 1991, PK Ventures' books indicated that, during 1991, PK Ventures had accrued $ 90,000 of "Salary" and an additional $ 37,469 of "Compensation & Benefits" with respect to Rose, that TBPC had accrued $ 30,000 of "Compensation & Benefits" with respect to Rose, and that TPTC had accrued $ 30,000 of "Mgt Salaries" with respect to Rose.
During March 1992, Rose made journal entries to PK Ventures' general ledger to reflect "deferred compensation" payable to him for 1986 through 1991 in the following amounts:
Year Amount
____ ______
1986 $ 500,000
1987 600,000
*134 1988 720,000
1989 840,000
1990 900,000
1991 900,000
According to this "Deferred Compensation" account, PK Ventures owed Rose $ 4,460,000 as of March 30, 1992. Prior to Rose's making these journal entries, there had never been a written agreement between Rose and PK Ventures as to deferred compensation, and Rose had never discussed deferred compensation with anyone who had an equity interest or financial interest in PK Ventures.
PK Ventures' general ledger for 1992 indicated that, during 1992, PK Ventures paid Rose $ 500,000 for 1986 and $ 246,948 for 1987. As of December 31, 1992, the "Deferred Compensation" account included in PK Ventures' general ledger showed a current balance of $ 3,713,052. At the advice of the auditors of PKV&S's consolidated financial statements, this balance was "reversed" off of PK Ventures' general ledger. Consequently, there was no liability for deferred compensation reported on PKV&S's audited consolidated financial statements for the year ended December 31, 1992, or on PKV&S's audited consolidated financial*135 statements for the year ended December 31, 1993. Moreover, there was no liability for deferred compensation reported on the Schedules L attached to PKV&S's consolidated income tax returns for 1992 and 1993.
PK Ventures' general ledger for 1992 also indicated that, during 1992, PK Ventures paid Rose $ 900,000 for his services to it and its subsidiaries. Of this $ 900,000, $ 32,500 was attributable to "MGT SAL TPTC" and $ 32,500 was attributable to "MGT SAL TBPC".
PK Ventures' general ledger for 1993 indicated that, during 1993, PK Ventures paid Rose compensation totaling $ 2,031,993. The general ledger did not clearly indicate what portion of this $ 2,031,993 was attributable to current compensation and what part (if any) was attributable to deferred compensation.
Rose, as sole director of PK Ventures, determined the amounts of compensation that PK Ventures paid to him during the years in issue. With respect to the $ 4,460,000 of "deferred compensation" that was recorded in PK Ventures' general ledger for 1992, Rose first determined this amount sometime between the beginning of 1992 and March 30, 1992. Included in the determination of the $ 4,460,000 was the amount of compensation*136 that Rose believed that he should have received from Zephyr during a 16-month period in 1987 and 1988. There had never been an amount accrued as a salary for Rose on Zephyr's books and records, and PK Ventures had never been a shareholder of Zephyr. Furthermore, the total compensation that Rose determined that PK Ventures should pay him for 1992 and 1993 related to his providing services over an "8.3-year" period that included a portion of 1985 and the entirety of 1986 through 1993.
C. Wages Reported on Income Tax Returns
PK Ventures deducted the following amounts as compensation paid to officers and salaries and wages paid on its income tax return for 1986, and PKV&S deducted the following amounts as compensation paid to officers and salaries and wages paid on its consolidated income tax returns for 1987 through 1993:
Compensation Paid Salaries an
Year to Officers Wages Paid
____ _________________ ___________
1986 -- --
1987 -- $ 173,844
1988 -- *137 192,211
1989 $ 170,000 --
1990 80,068 276,190
1991 103,000 396,247
1992 1,646,948 306,718
1993 2,031,993 352,974
All of the amounts that PKV&S reported as compensation paid to officers on these returns were attributable to Rose.
On the Roses' joint income tax returns for 1990 through 1995, Rose reported that he received the following amounts of compensation:
Wages Gross Income Miscellaneous
and Reported on Income from
Year Salaries Schedule C Form 1099
____ ________ ____________ _____________
1990 $ 6,923 $ 17,000 --
1991 -- -- $ 103,000
1992 -- -- 1,646,948
1993 -- -- 2,031,993
1994 606,250 -- --
1995*138 250,000 -- --
Rose did not report any compensation from PK Ventures or its subsidiaries in 1987 or 1988.
On its consolidated income tax return for 1990, PKV&S claimed a $ 50,068 deduction for officer compensation paid to Rose and a $ 30,000 deduction for a "salary transfer to Tampa Bay Pipeline Co." from PK Ventures. PKV&S reported that $ 17,000 of the $ 50,068 was paid by TPTC and that the balance was paid by PK Ventures. Neither the $ 30,000 attributable to TBPC nor the $ 50,068 attributable to PK Ventures and TPTC appears on the Roses' joint income tax return for 1990 as wages received. Rose did, however, report $ 33,068 of imputed interest from PK Ventures on that return as well as $ 17,000 of gross income from his involvement in an "investment company" on a Schedule C, Profit or Loss From Business, that was attached to the return.
On its consolidated income tax return for 1991, PKV&S claimed a $ 103,000 deduction for officer compensation paid to Rose. PKV&S reported that $ 30,000 of this amount was paid by TBPC, that $ 30,000 was paid by TPTC, and that the balance was paid by PK Ventures. In addition, PKV&S claimed a $ 37,469*139 deduction for other salaries and wages paid to Rose. This latter deduction was attributable to the "reclassification" of an account showing that Rose owed PK Ventures $ 437,469 as of December 31, 1991. As discussed above, this "reclassification" resulted in PKV&S's claiming a $ 400,000 bad debt deduction as well as the $ 37,469 deduction for other salaries and wages paid to Rose. The Roses reported the $ 103,000 of officer compensation on their joint income tax return for 1991, but they failed to report the $ 37,469 of other salaries and wages.
On its consolidated income tax return for 1992, PKV&S claimed a $ 1,646,948 deduction for officer compensation paid to Rose. PKV&S reported that $ 32,500 of this amount was paid by TBPC, that $ 32,500 was paid by TPTC, and that the balance was paid by PK Ventures. The Roses reported the $ 1,646,948 of officer compensation on their joint income tax return for 1992.
On its consolidated income tax return for 1993, PKV&S claimed a $ 2,031,993 deduction for officer compensation paid to Rose. PKV&S reported that $ 32,500 of this amount was paid by TBPC, that $ 32,500 was paid by TPTC, and that the balance was paid by PK Ventures. The Roses reported*140 the $ 2,031,993 of officer compensation on their joint income tax return for 1993. In addition to this amount, the Roses reported interest from PK Ventures of $ 292,350.
Rose received the amounts of wages and salaries that he reported on the Roses' joint income tax returns for 1994 and 1995 from TPC. TPC issued Forms W-2, Wage and Tax Statement, to Rose with respect to these amounts.
D. IRS Determinations
With respect to 1990, the IRS determined that Rose should have reported a total of $ 350,000 of compensation from PK Ventures and its subsidiaries. The IRS determined that this amount included $ 285,000 of compensation that had been accrued by SLPC, TBPC, and TPTC during 1987, 1988, 1989, and 1990 and paid to Rose in 1990 and included $ 65,000 of compensation that had been accrued by PK Ventures prior to 1990 and paid to Rose in 1990. After taking into account the $ 17,000 of gross income that Rose had reported on a Schedule C that was attached to the Roses' joint income tax return for 1990 and shifting $ 13,000 of the compensation that Rose reported in 1991 to 1990, the IRS increased the Roses' taxable income for 1990 by $ 320,000.
With respect to 1991, the IRS determined*141 that Rose should have reported an additional $ 97,469 of compensation from PK Ventures and its subsidiaries. The IRS determined that this amount included $ 60,000 of compensation that had been accrued by TBPC and TPTC during 1991 and included $ 37,469 of compensation that had been accrued by PK Ventures during that year. Accordingly, the IRS increased the Roses' taxable income for 1991 by $ 97,469.
The Roses conceded these adjustments for 1990 and 1991. Taking into account these concessions, Rose received the following amounts of compensation for his services to PK Ventures and its subsidiaries during 1986 through 1991:
Entity 1986-89 1990 1991
______ _______ ____ ____
PK Ventures $ 170,000 $ 98,068 $ 67,469
SLPC -- 45,000 --
TBPC -- 120,000 60,000
TPTC -- 120,000 60,000
________ _______ ________
Total 170,000 383,068 187,469
In sum, Rose received $ 740,537 for his services to PK Ventures and its subsidiaries*142 during these years.
With respect to 1992, the IRS determined that the deduction that PKV&S claimed for compensation paid to Rose should be reduced by $ 1,208,893. The IRS determined this reduction by subtracting (1) reasonable salary for 1992 totaling $ 143,317 and (2) deferred compensation totaling $ 294,738 from the $ 1,646,948 that PKV&S deducted in that year. The IRS determined the reasonable salary for 1992 by multiplying PKV&S's gross receipts for that year by 3 percent. The IRS determined deferred compensation as follows:
Salary
Deducted on Reasonable Deferred
Year Return Salary Difference Compensation
____ ___________ __________ __________ ____________
1987 -- $ 91,634 ($ 91,634) $ 91,634
1988 -- 120,800 (120,800) 120,800
1989 $ 170,000 133,739 36,261 (36,261)
1990 50,068 159,024 (108,956) 108,956
1991 140,469 150,078 (9,609) 9,609
_________ _______ *143 __________ _________
Total 360,537 655,275 (294,738) 294,738
As it did in 1992, the IRS determined reasonable salary for 1987 through 1991 by multiplying PKV&S's gross receipts for each of those years by 3 percent. Accordingly, the IRS increased PKV&S's taxable income by $ 1,208,893 for 1992.
With respect to 1993, the IRS determined that the deduction that PKV&S claimed for compensation paid to Rose should be reduced by $ 1,892,852. The IRS determined this reduction by subtracting reasonable salary for 1993 totaling $ 139,141 from the officer compensation that PKV&S deducted in that year. As it did in 1992, the IRS determined reasonable salary for 1993 by multiplying PKV&S's gross receipts for that year by 3 percent. Accordingly, the IRS increased PKV&S's taxable income by $ 1,892,852 for 1993.
PK Ventures' Share of PKVI LP's Items of Income and Loss
A. As Reported on PK Ventures' Schedules K-1
The following items were listed on PK Ventures' Schedules K-1 that were attached to PKVI LP's Forms 1065 for 1986 through 1993:
Amount
*144 General Limited
Year Item Interest Interest
____ ____ ________ ________
1986 Capital contributed during year $ 500 --
Net long-term capital gain 29 --
Withdrawals and distributions -- --
Ordinary loss from business activities (1,323) --
Net short-term capital loss (13) --
1987 Capital contributed during year -- --
Interest income 69 --
Withdrawals and distributions -- --
Ordinary loss from business activities (2,036) --
1988 Capital contributed during year 3,540 --
Withdrawals and distributions -- *145 --
Ordinary loss from business activities (18,515) --
1989 Capital contributed during year -- --
Withdrawals and distributions -- --
Ordinary loss from business activities (26,497) --
1990 Capital contributed during year -- ($ 95,640)
Net gain under
Withdrawals and distributions -- --
Ordinary loss from business activities (32,301) (96,097)
1991 Capital contributed during year -- --
Cancellation of indebtedness income 81,119 373,755
Withdrawals and distributions -- --
Ordinary loss from business activities (32,327) (148,944)
1992 Capital contributed during year -- --
Withdrawals and distributions -- --
Ordinary loss from business*146 activities (44,925) (206,996)
1993 Capital contributed during year -- --
Withdrawals and distributions -- --
Ordinary loss from business activities (33,561) (154,631)
Net loss under
B. As Reported on the Income Tax Returns for PK Ventures and
PKV&S
PK Ventures reported the following amount with respect to its interest in PKVI LP on its income tax return for 1986, and PKV&S reported the following amounts with respect to PK Ventures' and/or its subsidiaries' interests in PKVI LP on its consolidated income tax returns for 1987 through 1993:
Income (Loss) Cancellation of
Year from PKVI LP Bad Debts Indebtedness Income
____ _____________ _________ ____________________
1986 ($ 1,323) -- --
1987 (2,036) -- --
1988 (18,515) -- --
1989*147 (26,497) -- --
1990 (124,687) -- --
1991 (181,271) $ 1,516,246 $ 454,874
1992 (251,921) -- --
1993 (212,893) -- --
C. IRS Determinations
The IRS determined that PKV&S could deduct PK Ventures' distributive share of PKVI LP's losses for 1990, 1991, 1992, and 1993 to the extent of PK Ventures' basis in its PKVI LP interest. Before taking into account any of PKVI LP's losses, the IRS determined that PK Ventures' basis in its PKVI LP interest was $ 114,936 as of December 31, 1990. The IRS determined this amount by subtracting the amount of PKVI LP's losses that PKV&S deducted in 1986, 1987, 1988, and 1989 from the cash advances that it determined that PK Ventures had made to PKVI LP in 1990 and prior years and the capital contribution that it determined that PK Ventures had made to PKVI LP in 1988. The IRS allowed as a deduction against this basis $ 114,936 of PK Ventures' distributive share of PKVI LP's losses for 1990. Accordingly, *148 the IRS increased PKV&S's taxable income by $ 9,751 for 1990.
Before taking into account any of PKVI LP's losses, the IRS determined that PK Ventures' basis in its PKVI LP interest was zero as of December 31, 1991. With respect to 1991, the IRS notified PKV&S that PKVI LP was subject to partnership-level proceedings pursuant to the partnership audit and litigation procedures of
Before taking into account any of PKVI LP's losses, the IRS determined that PK Ventures' basis in its PKVI LP interest was zero as of December 31, 1992, and zero as of December 31, 1993. Consequently, the IRS did not allow PKV&S to deduct any of PKVI LP's losses during those years. The IRS increased PKV&S's taxable income by $ 251,921 for 1992 and by $ 212,893 for 1993.
The Roses' Share of PKVI LP's Items*149 of Income and Loss
A. As Reported on Rose's Schedules K-1
The following items were listed on Rose's Schedules K-1 that were attached to PKVI LP's Forms 1065 for 1986 through 1993:
Year Item Amount
____ ____ ______
1986 Capital contributed during year --
Net long-term capital gain $ 865
Withdrawals and distributions --
Ordinary loss from business activities (39,700)
Net short-term capital loss (388)
1987 Capital contributed during year --
Interest income 2,077
Withdrawals and distributions --
Ordinary loss from business activities (61,096)
1988 Capital contributed during year --
Withdrawals and distributions --
*150 Ordinary loss from business activities (103,820)
1989 Capital contributed during year (94,525)
Withdrawals and distributions --
Ordinary loss from business activities (346,692)
1990 Capital contributed during year --
Net gain under
Withdrawals and distributions --
Ordinary loss from business activities (422,629)
1991 Capital contributed during year --
Cancellation of indebtedness income 1,061,372
Withdrawals and distributions --
Ordinary loss from business activities (422,964)
1992 Capital contributed during year --
Withdrawals and distributions --
Ordinary loss from business activities (587,817)
1993 Capital contributed during year --
Withdrawals*151 and distributions --
Ordinary loss from business activities (439,114)
Net loss under
B. As Reported on the Roses' Income Tax Returns
On their joint income tax returns for 1990 through 1995, the Roses reported the following amounts of income and loss with respect to their interest in PKVI LP:
Income (Loss) Cancellation of
Year from PKVI LP Indebtedness Income
____ _____________ __________________
1990 -- --
1991 ($ 654,236) $ 1,061,372
1992 (1,008,745) --
1993 (689,766) --
1994 (373,590) --
1995 (679,795) --
The Roses attached the following statement, in pertinent part, to their joint income tax return for 1990:
The above mentioned taxpayers have elected to carryforward the
net operating lossess [sic] of the following companies for the
tax period ending 12/31/90:
*152 * * * * * * *
2. PK Ventures I Limited Partnership, (1990) the aggregate
amount of $ 422,629, which appears on the taxpayer's Schedule K-1
(Form 1065) line 1, * * *
* * * * * * *
In addition, unused outstanding amounts have been carried
forward: * * * PK Ventures I Limited Partnership (1988) of
$ 103,820 * * * and PK Ventures I Limited Partnership (1989) of
$ 318,768.
This statement was signed by the Roses and dated October 12, 1991. In sum, the Roses carried forward losses from PKVI LP totaling $ 845,217.
The Roses attached the following statement, in pertinent part, to their joint income tax return for 1991:
The above mentioned taxpayers have elected to carryforward the
net operating lossess [sic] of the following companies for the
tax period ending 12/31/91:
1. The amount of $ 318,768 of unapplied net operating loss
from PK Ventures I LP (1989) * * * was carried forward to 1991.
Of this amount, $ 127,452 was applied in 1991 (Schedule E2, line
31H) and the balance of*153 $ 191,316 carried forward.
2. The amount of $ 422,629 unapplied net operating loss from PK
Ventures LP (1990) * * * has been carried forward.
This statement was signed by the Roses and dated October 14, 1992. In sum, the Roses carried forward losses from PKVI LP totaling $ 613,945.
The Roses attached the following statement to their joint income tax return for 1992:
The above mentioned taxpayers have elected to apply * * * the
net operating losses of the following company for the tax period
ending 12/31/92:
1. The amount of $ 394,800 of net operating losses from PK
Ventures I Limited Partnership (1992) * * * have been applied.
The taxpayer has elected to carryforward the balance of $ 193,017
of unapplied net operating losses.
2. The amount of $ 191,316 of net operating losses from PK
Ventures I Limited Partnership (1989) * * * have been applied.
3. The amount of $ 422,629 of net operating losses from PK
Ventures I Limited Partnership (1990) * * * have been applied.
In sum, the Roses carried forward losses from PKVI LP totaling $ 193,017.
The Roses attached*154 the following statement, in pertinent part, to their joint income tax return for 1993: "The above mentioned taxpayers have elected to apply * * * the net operating loss carryforward for the tax period ending 12/31/93 for the amount of $ 193,017 from PK Ventures I Limited Partnership (1992)".
C. IRS Determinations
The IRS determined that the Roses could deduct their distributive share of PKVI LP's losses for 1990, 1991, 1992, 1993, 1994, and 1995 to the extent of the basis in their PKVI LP interest. Before taking into account any of PKVI LP's losses, the IRS determined that the Roses' basis in their PKVI LP interest was $ 667,056 as of December 31, 1990. The IRS determined this amount by subtracting the amount of PKVI LP's losses that the Roses deducted in 1988 and 1989 from the amount of constructive dividends that it determined that the Roses recognized as a result of the transfers from PK Ventures, TBPC, and TPTC to PKVI LP prior to 1991. The IRS included a note stating that this basis computation "will need to be adjusted if the level of constructive dividends shown in Adjustment H are [sic] changed." The IRS allowed as a deduction against this basis (1) a $ 103,820*155 loss carryover from PKVI LP's 1988 partnership year; (2) a $ 318,788 loss carryover from PKVI LP's 1989 partnership year; and (3) $ 244,468 of the Roses' distributive share of PKVI LP's losses for 1990. Accordingly, the IRS decreased the Roses' taxable income by $ 667,056 for 1990.
Before taking into account any of PKVI LP's losses, the IRS determined that the Roses' basis in their PKVI LP interest was $ 293,997 as of December 31, 1991. The IRS determined that the Roses recognized this amount of constructive dividends as a result of the transfers from PK Ventures, TBPC, and TPTC to PKVI LP during 1991. The IRS included a note stating that this basis computation "will need to be adjusted if the level of constructive dividends shown in Adjustment H are [sic] changed." As discussed above, the IRS notified the Roses that PKVI LP was subject to partnership-level proceedings pursuant to the partnership audit and litigation procedures of
Before taking into account any of PKVI LP's losses, the IRS determined that the Roses' basis in their PKVI LP interest was $ 335,448 as of December 31, 1992. The IRS determined that this amount had been advanced to PKVI LP on behalf of the Roses during 1992. The IRS allowed as a deduction against this basis $ 98,782 of the Roses' distributive share of PKVI LP's losses for 1992. Accordingly, the IRS increased the Roses' taxable income by $ 909,963 for 1992.
Before taking into account any of PKVI LP's losses, the IRS determined that the Roses' basis in their PKVI LP interest was $ 242,073 as of December 31, 1993. The IRS determined that this amount had been advanced to PKVI*157 LP on behalf of the Roses during 1993. The IRS allowed as a deduction against this basis $ 242,073 of the Roses' balance of their distributive share of PKVI LP's losses for 1992. Accordingly, the IRS increased the Roses' taxable income by $ 447,693 for 1993.
Before taking into account any of PKVI LP's losses, the IRS determined that the Roses' basis in their PKVI LP interest was zero as of December 31, 1994, and zero as of December 31, 1995. Consequently, the IRS did not allow the Roses to deduct any of PKVI LP's losses during those years. The IRS increased the Roses' taxable income by $ 373,590 for 1994 and $ 679,795 for 1995.
The Roses' Share of Zephyr's Items of Income and Loss
A. As Reported on Rose's Schedules K-1
The following items were listed as Rose's pro rata share of Zephyr's items of income, loss, and deduction on Rose's Schedules K- 1, Shareholder's Share of Income, Credits, Deductions, etc., that were attached to Zephyr's Forms 1120S for 1987 through 1989:
Year Item Amount
____ ____ ______
1987 Ordinary*158 loss from business activities ($ 179,025)
Interest income 511
Net long-term capital gain 4,323
1988 Ordinary loss from business activities (797,252)
Interest income 838
1989 Ordinary loss from business activities (651,355)
Interest income ? 75
B. As Reported on the Roses' Income Tax Returns
On their joint income tax returns for 1990 through 1992, the Roses reported losses of $ 11,941, $ 868,812, and $ 651,355, respectively, with respect to their interest in Zephyr.
The Roses attached the following statement, in pertinent part, to their joint income tax return for 1990:
The above mentioned taxpayers have elected to carryforward the
net operating lossess [sic] of the following companies for the
tax period ending 12/31/90:
* * * * * * *
The amount of $ 83,501.00 of unapplied net operating*159 loss from
Zephyr Rock & Lime Inc., (1987) * * * was carried forward to
1990. Of this amount, $ 11,941 was applied in 1990 (Schedule E,
line 31a) and the balance of $ 71,560 carried forward.
In addition, unused outstanding amounts have been carried
forward: Zephyr Rock & Lime Inc., (1988) $ 797,252, * * * Zephyr
Rock & Lime Inc (1989) of $ 651,355 * * *
This statement was signed by the Roses and dated October 12, 1991. In sum, the Roses carried forward losses from Zephyr totaling $ 1,520,167.
The Roses attached the following statement, in pertinent part, to their joint income tax return for 1991:
The above mentioned taxpayers have elected to carryforward the
net operating lossess [sic] of the following companies for the
tax period ending 12/31/91:
* * * * * * *
4. The amount of $ 651,355 unapplied net operating loss from
Zephyr Rock & Lime, Inc. (1989) * * * has been carried forward.
This statement was signed by the Roses and dated October 14, 1992.
The Roses attached the following statement, in pertinent part, to their joint income*160 tax return for 1992:
The above mentioned taxpayers have elected to apply * * * the
net operating losses of the following company for the tax period
ending 12/31/92:
* * * * * * *
5. The amount of $ 651,355 of net operating losses from Zephyr
Rock & Lime Inc. (1989) * * * have been applied.
C. IRS Determinations
The IRS determined that the Roses could deduct the losses that they reported from Zephyr on their joint income tax returns for 1990, 1991, and 1992 to the extent of the basis in their Zephyr interest. The IRS determined that, as of January 1, 1990, the Roses' basis in their Zephyr interest was $ 810,431, which included the following amounts:
Source Amount
______ ______
Original investment $ 400,000
Note given to Mills 480,000
Constructive dividends 25,955
Loss deducted in 1988 (56,825)
Loss deducted in 1989 (38,699)
Furthermore, the IRS determined that, as of January 1, 1990, the*161 Roses had not deducted $ 1,532,106 of their share of the losses that Zephyr had incurred during 1987, 1988, and 1989. After taking into consideration the $ 11,941 loss that the Roses claimed on their joint income tax return for 1990 with respect to their interest in Zephyr, the IRS determined that the Roses could deduct an additional $ 798,490 of Zephyr's losses in that year. The IRS determined that the Roses were not entitled to deduct any additional amount of Zephyr's losses on their joint income tax returns for 1991 and 1992. Accordingly, the IRS decreased the Roses' taxable income by $ 798,490 for 1990 and increased the Roses' taxable income by $ 868,812 for 1991 and $ 651,355 for 1992.
Transactions Involving SLPC, TPC, and the Roses During 1994 and 1995
Effective January 1, 1994, PK Ventures and its subsidiaries reorganized their corporate structure, which resulted in two surviving corporations -- SLPC and TPC. As of that date, PK Ventures, TPTC, and TBPC were merged into TPC through transfers of stock. Both SLPC and TPC elected to be treated as S corporations during 1994 and 1995. SLPC was wholly owned by Rose during 1994 and 1995. Rose also held an ownership interest in TPC*162 during 1994 and 1995.
SLPC realized gross receipts or sales of zero in 1991, 1992, and 1993 and had a combined total income of $ 21,720 for those years. SLPC became insolvent during 1993. During 1994, SLPC incurred large losses because its pipeline was shut down for major repairs.
On December 31, 1994, Rose paid $ 350,000 of the amount that SLPC owed to TPC by reducing the amount that TPC owed to him. This transaction was recorded on TPC's books by journal entries that reduced the amount that it owed to Rose by $ 350,000 as well as the amount that SLPC owed to it by $ 350,000. The transaction was reflected on the books of SLPC by journal entries that reflected a $ 350,000 reduction in the amount that it owed to TPC and a $ 350,000 increase in the amount that it owed to Rose.
The Roses deducted losses from SLPC totaling $ 455,151 on their joint income tax return for 1994.
Rose paid an additional $ 800,000 of SLPC's debt to TPC during 1995 by reducing the amount that TPC owed to him. This transaction was recorded on TPC's books by journal entries that reduced the amount that it owed to Rose by $ 800,000 as well as the amount that SLPC owed to it by $ 800,000. The transaction was*163 reflected on the books of SLPC by journal entries that reflected an $ 800,000 reduction in the amount that it owed to TPC and an $ 800,000 increase in the amount that it owed to Rose.
The Roses deducted losses from SLPC totaling $ 322,973 on their joint income tax return for 1995.
As of February 5, 2004, the outstanding principal balance of the transactions between SLPC and the Roses was no less than the outstanding principal balance of those transactions as of 1995. Furthermore, between 1995 and February 5, 2004, the outstanding principal balance of the transactions between SLPC and the Roses remained substantially unchanged.
A. As Described in SLPC and the Roses' Income Tax Returns
On the Schedule L attached to SLPC's Form 1120S for 1994, SLPC's "Other current liabilities" were reported to be $ 1,732,262 as of the beginning of that year and $ 2,727,575 as of the end of that year. Of these amounts, SLPC reported that $ 1,730,997 and $ 2,711,734, respectively, were "DUE TO AFFILIATE". Also on this Schedule L, SLPC's "Loans from shareholders" were reported to equal $ 350,000 as of the end of 1994. There were no amounts separately identified as interest payments made and/or*164 imputed by SLPC to the Roses on its Form 1120S for 1994.
There were no amounts separately identified as interest payments received and/or imputed by the Roses from SLPC on their joint income tax return for 1994.
On the Schedule L attached to SLPC's Form 1120S for 1995, SLPC's "Other current liabilities" were reported to be $ 2,208,733 as of the end of that year. Of that amount, SLPC reported that $ 2,171,155 was "DUE TO AFFILIATE". Also on this Schedule L, SLPC's "Loans from shareholders" were reported to equal $ 1,219,000 as of the end of 1995. There were no amounts separately identified as interest payments made and/or imputed by SLPC to the Roses on its Form 1120S for 1995.
There were no amounts separately identified as interest payments received and/or imputed by the Roses from SLPC on their joint income tax return for 1995.
B. IRS Determinations
The IRS determined that the Roses could deduct the losses that they reported from SLPC on their joint income tax returns for 1994 and 1995 to the extent of the basis in their SLPC interest. In calculating the Roses' basis in their SLPC interest for those years, the IRS determined that the $ 350,000 transaction between TPC*165 and SLPC in 1994 and the $ 800,000 transaction between TPC and SLPC in 1995 did not constitute debt owed to the Roses and did not increase the Roses' basis in their SLPC interest. The IRS determined that "there was not an actual economic outlay" by the Roses and that "the debt was not directly attributable to" the Roses.
The IRS determined that the Roses had a $ 200,000 basis in their SLPC interest as of the end of 1994 and had no basis in their SLPC interest as of the end of 1995. Consequently, the IRS determined that the Roses could deduct $ 200,000 of SLPC's losses in 1994 and none of SLPC's losses in 1995. The IRS increased the Roses' taxable income by $ 255,151 for 1994 and by $ 322,973 for 1995.
Imposition of Accuracy-Related Penalties by the IRS
The Roses signed their joint income tax returns for 1990, 1991, 1992, and 1993 on October 12, 1991, October 14, 1992, October 15, 1993, and October 14, 1994, respectively. There was no paid preparer's information listed on any of these returns. There were no Forms 8275, Disclosure Statement, attached to these returns.
The IRS determined accuracy-related penalties under
OPINION
Procedural Matters
PKV&S and the Roses filed their respective petitions with the Court on March 25 and June 1, 1999. Rose, as the designated tax matters partner for PKVI LP, filed a Petition for Readjustment of Partnership Items Under Code
By notices served on October 7, 1999, August 3, 2000, and May 10, 2001, these cases were set for trial 5 months after the dates of the respective notices. Attached to each of the Notices Setting Case for Trial was the Court's Standing Pretrial Order. The Standing Pretrial Order provided, in pertinent part, as follows:
To facilitate an orderly and efficient*167 disposition of all cases
on the trial calendar, it is hereby
ORDERED that all facts shall be stipulated to the maximum extent
possible. All documentary and written evidence shall be marked
and stipulated in accordance with
evidence is to be used solely to impeach the credibility of a
witness. * * * Any documents or materials which a party expects
to utilize in the event of trial (except solely for
impeachment), but which are not stipulated, shall be identified
in writing and exchanged by the parties at least 14 days before
the first day of the trial session. The Court may refuse to
receive in evidence any document or material not so stipulated
or exchanged, unless otherwise agreed by the parties or allowed
by the Court for good cause shown. * * *
On each of these occasions, the cases were continued on the joint motion (or request) of the parties. On three subsequent occasions, the cases were set for trial, Standing Pretrial Orders were served, and the cases were continued on motion of one of the parties.
On January 15, 2003, the Court issued Orders that, *168 inter alia, required the parties to exchange all nonstipulation material, including any schedules, charts, and other documents that collected or summarized testimony or documents that were for impeachment purposes, by March 14, 2003, and required the parties to exchange a list of all documents already in the possession of opposing counsel.
On August 26, 2003, these cases were set for trial to commence on February 2, 2004. The parties were directed to comply with the Standing Pretrial Order that was served on April 22, 2003, a copy of which was attached.
During trial of these cases on February 4-6, 2004, petitioners attempted to move into evidence a large number of documents that had not been provided to respondent until sometime on or after January 19, 2004. A significant portion of these documents had not been provided to respondent until the morning of February 4, 2004. Respondent objected to many of these documents' being received in evidence on the grounds that the documents were hearsay and had not been exchanged in accordance with the numerous Standing Pretrial Orders that the Court had issued in these cases. We sustained respondent's objections to those documents and summaries*169 of those documents offered in evidence by petitioners. There was no excuse for the belated tender of documents, and we reaffirm our rulings on respondent's objections. The documents not received in evidence have not been considered in our findings of fact.
Issue #1 -- Transfers From PK Ventures to the Zephyr Purchasers
Whether a withdrawal of funds from a business by one of its owners or an advance made to a business by one of its owners creates a true debtor-creditor relationship is a factual question to be decided based on all of the relevant facts and circumstances. See
Petitioners contend that the facts and circumstances of these cases establish that transfers from PK Ventures to the Zephyr purchasers were bona fide loans. Furthermore, petitioners contend that these alleged debts became worthless during the years in which PKV&S claimed bad debt deductions on its consolidated income tax returns. Conversely, respondent contends that the facts and circumstances of these cases establish that the transfers were not bona fide loans. Respondent also contends that, in any event, none of these alleged debts became worthless during the years in which PKV&S claimed bad debt deductions on its consolidated income tax returns. We consider these contentions below.
Petitioners contend that, because the Summit Trust loan was a bona fide loan, the transfers from PK Ventures to the Zephyr purchasers were also bona fide loans. Petitioners are essentially relying on the circumstances surrounding the Summit Trust loan to establish that the transfers from PK Ventures to the Zephyr purchasers were bona fide loans. Petitioners do not cite any authority to support*173 this contention. After considering the relevant factors and weighing the evidence, we reject petitioners' contention that the transfers from PK Ventures to the Zephyr purchasers were bona fide loans for the reasons discussed below.
First, PK Ventures did not receive promissory notes from the Zephyr purchasers in exchange for its transfer of $ 1 million to them.
Second, no evidence indicates that the Zephyr purchasers made any agreement with PK Ventures as to the time of repayment or the interest to be paid.
Third, while PK Ventures provided security for its repayment of the Summit Trust loan to Summit Trust, no evidence indicates that the Zephyr purchasers provided any collateral or security for repayment of the transfers that they received from PK Ventures.
Fourth, the Zephyr purchasers did not make any payments of principal or interest to PK Ventures, and no accrued interest attributable to these transfers was posted to PK Ventures' general ledger or reported in its audited financial statements. Furthermore, there is no indication that any accrued interest attributable to these transfers was reported in PKV&S's consolidated income tax returns for 1987, 1988, 1989, 1990, or 1991.
*174 Fifth, no evidence indicates that PK Ventures had the right to enforce the payment of principal and interest with respect to its transfers to the Zephyr purchasers.
Sixth, 9 of the 10 Zephyr purchasers were shareholders of PK Ventures. As of August 20, 1987, these nine Zephyr purchasers owned 99.47 percent of the stock of PK Ventures. Of the $ 1 million transferred from PK Ventures to the Zephyr purchasers, Rose received $ 400,000, an amount proportional to his 40-percent interest in PK Ventures. There is no evidence of the specific amounts transferred from PK Ventures to each of the nine other Zephyr purchasers.
Seventh, based upon Rose's experience in corporate finance, we are convinced that he could have documented the transfers from PK Ventures to the Zephyr purchasers with promissory notes and arranged for these transfers to occur under terms significantly closer to arm's length than those that were actually chosen. This conclusion is bolstered by our consideration of the structure and formality of (1) the financing arrangements into which PK Ventures had entered in connection with the purchase of the stock of SLPC, TBPC, TPC, and TPTC; (2) the Summit Trust loan; (3) the financing*175 arrangements into which Rose had entered in connection with his acquisition of control of PK Ventures during 1990; and (4) the financing arrangements between PKVI LP and unrelated parties.
Eighth, the labels given to the transfers from PK Ventures to the Zephyr purchasers on PK Ventures' audited financial statements for the years ended December 31, 1987, December 31, 1988, and December 31, 1989, and on the Schedules L attached to PKV&S's consolidated income tax returns for 1987, 1988, and 1989 cannot overcome the substance of these transfers. See
Because the transfers from PK Ventures to the Zephyr purchasers were not bona fide loans, we need not decide questions of worthlessness and timing. See
Respondent determined that PK Ventures' transfer of $ 400,000 to Rose in connection with the Zephyr purchase constituted a constructive dividend to him in 1990. Consequently, respondent increased the Roses' taxable income by $ 400,000 in 1990 and determined that the Roses should not have reported $ 400,000 of cancellation of indebtedness income on their joint income tax return for 1991. We agree that the Roses should not have reported $ 400,000 of cancellation of indebtedness income on their joint income tax return for 1991 because, as we discussed above, PK Ventures' transfer of $ 400,000 to Rose in connection with the Zephyr purchase was not a bona fide loan. With respect to respondent's treatment of the $ 400,000 transfer as a dividend distribution in 1990, petitioners contend that, because the transfer occurred in 1987, the transfer could only be a dividend distribution to Rose in that year rather than in 1990. Respondent has not offered an explanation as to why this $ 400,000 transfer*177 should be treated as a dividend distribution to Rose in 1990. Because we have decided that the transfer from PK Ventures to Rose in connection with the Zephyr purchase was not a bona fide loan, we agree with petitioners, and we hold that the transfer is not a dividend distribution to Rose in 1990 (or in any of the other years before the Court in these cases). See
Issue #2 -- Transfers From PK Ventures, TBPC, and TPTC to PKVI LP
Approximately two-thirds ($ 1,096,250 out of $ 1,516,246) transferred from PK Ventures and its subsidiaries to PKVI LP was transferred during 1986 through 1990. An FPAA was issued to PKVI LP only for 1991. PKVI LP was a partnership subject to the provisions of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), partially codified at
For 1991, however, in the FPAA sent to PKVI LP, respondent disallowed interest expense in the amount of $ 100,661 because it had not been established that the interest expense was attributable to a bona fide debt. Thus, in determining whether that interest expense deduction is allowable, we have found facts relating to the transfers and applied the factors discussed in the preceding section to determine whether the transfers were bona fide debt or capital contributions.
Petitioners argue that the following factors support their contention that the transfers from PK Ventures, TBPC, and TPTC to PKVI LP during 1986 through 1991 were bona fide loans: (1) Formal indicia of debt, (2) risk involved, (3) participation in management and identity of interest, (4) intent of the parties (5) capitalization, (6) independent financing, and (7) acquisition*179 of capital assets and failure to repay on the due date. In making their argument, petitioners do not attempt to distinguish the transfers from TBPC and TPTC to PKVI LP from the transfers between PK Ventures and PKVI LP. Accordingly, from this point forward, we refer to these transfers as occurring between PK Ventures and PKVI LP. After considering the relevant factors and weighing the evidence, we reject petitioners' contention that the transfers from PK Ventures to PKVI LP were bona fide loans for the reasons discussed below.
First, we are unpersuaded that the PKVI LP promissory notes are reliable evidence of any indebtedness between PKVI LP and PK Ventures. There is no indication that the PKVI LP promissory notes were completed contemporaneously with PKVI LP's receipt of funds from PK Ventures. Rather, Rose testified that his preparation of the PKVI LP promissory notes was "ministerial" and completed on a cumulative basis, so as to account for the total amount of the transfers from PK Ventures to PKVI LP in preparation for the yearly audit of these businesses' financial records. Moreover, at the time that Rose signed the $ 1,516,246 promissory note (i.e., the note representing the*180 aggregate amount of the transfers from PK Ventures to PKVI LP during 1986 through 1991), Rose, as a general partner with a 70-percent interest in PKVI LP, neither intended to have PKVI LP repay any of this amount to PK Ventures nor intended to repay any of this amount himself. These facts undermine the reliability of the PKVI LP promissory notes. In addition, the purported terms of the PKVI LP promissory notes were contradicted by the statements made in PKVI LP's audited financial statements for the year ended December 31, 1990, and PKV&S's audited consolidated financial statements for the year ended December 31, 1991, that the transfers from PK Ventures, TBPC, and TPTC to PKVI LP did not bear interest. Accordingly, we are unpersuaded that the existence of the PKVI LP promissory notes justifies a conclusion that the transfers from PK Ventures to PKVI LP were bona fide loans.
Second, unlike the basic structure of PKVI LP's debt to unrelated parties, the transfers from PK Ventures to PKVI LP were not secured by the hydroelectric properties owned by PKVI LP; did not have a fixed payment date; and, as established by PKVI LP's audited financial statements for the year ended December 31, 1990, and*181 PKV&S's audited consolidated financial statements for the year ended December 31, 1991, did not bear interest.
Third, no evidence indicates that PKVI LP actually made any payments of principal or interest to PK Ventures. Moreover, PKV&S's inconsistent reporting of imputed interest payments from PKVI LP on its consolidated income tax returns for 1987 through 1991 does not persuade us that the transfers from PK Ventures to PKVI LP were bona fide loans.
Fourth, no evidence indicates that PK Ventures had the right to enforce the payment of principal or interest with respect to its transfers to PKVI LP. Rather, PK Ventures and PKVI LP agreed that PKVI LP would not make any payments of principal or interest if such payments would have caused it to default or breach any other note or agreement to which it was a party. This agreement subordinated the right of PK Ventures to demand payment of its transfers to PKVI LP to the rights of PKVI LP's creditors.
Fifth, PKVI LP was thinly capitalized. PKVI LP reported $ 50,000 of capital contributions on its books. PKVI LP had approximately 24 times more debt to unrelated parties than it had equity at the end of 1986, 37 times more at the end of*182 1987, 45 times more at the end of 1988 and 1989, 42 times more at the end of 1990, and 45 times more at the end of 1991. If the transfers from PK Ventures to PKVI LP are treated as debt and included in this analysis, these ratios would increase to approximately 54:1 at the end of 1989, 64:1 at the end of 1990, and 75:1 at the end of 1991. PKVI LP was experiencing serious financial difficulties as of 1989, and these difficulties continued through 1990 and 1991.
Sixth, after 1988, PKVI LP was unable to obtain any additional financing from unrelated parties other than a $ 125,000 loan from First Fidelity. PKVI LP entered into this loan agreement with First Fidelity on or before October 16, 1989. PKVI LP was also able to renegotiate its outstanding loan agreements with Liberty Life and MGFP between December 31, 1989, and December 31, 1991, but no additional financing was provided to PKVI LP by either Liberty Life or MGFP as part of these renegotiated agreements. Furthermore, a substantial portion (if not all) of the $ 1,516,246 that was transferred from PK Ventures to PKVI LP was received by PKVI LP during and after 1989. The timing of the transfers from PK Ventures to PKVI LP coupled*183 with PKVI LP's inability to obtain additional financing from unrelated parties does not support a conclusion that the transfers from PK Ventures to PKVI LP were bona fide loans.
Seventh, besides the initial capital contributions that were made to PKVI LP, no evidence indicates that any of PKVI LP's limited partners other than PK Ventures transferred funds to the partnership between September 15, 1986, and December 7, 1990. During that period, PK Ventures' limited partnership interest in PKVI LP increased from zero to 29 percent (i.e., PK Ventures acquired the entire limited partnership interest in PKVI LP). PK Ventures' increased ownership interest in PKVI LP was due, in large part, to partners owning at least 24.65 percent of PKVI LP's limited partnership interests assigning their interests in the partnership to PK Ventures for apparently no consideration other than relief from the partnership's liabilities. Furthermore, these assignments occurred during the time in which PKVI LP was experiencing serious financial difficulties. These facts do not support a conclusion that the transfers from PK Ventures to PKVI LP were bona fide loans. Rather, these facts indicate that PK Ventures*184 gained a greater ownership interest in PKVI LP by its willingness to assume the liabilities of the partnership and to provide the partnership with capital to pay those liabilities.
Eighth, as a result of holding approximately 76 percent of the partnership interests in PKVI LP as of February 16, 1990, Rose and PK Ventures gained the exclusive right, power, and authority to make calls for additional capital contributions on behalf of PKVI LP, to permit a withdrawal of capital by any partner, to admit an additional partner to the partnership, to permit the withdrawal of any partner from the partnership, to designate any additional investments for the partnership and to determine the participating percentages of the partners in such additional investments, to sell or otherwise dispose of all or substantially all of the partnership's property attributable to any investment, to permit any agreement between the partnership and any general partner or any person controlled by or controlling or under common control with a general partner, and to permit the transfer or assignment, in whole or in part, by a partner of his interest in the partnership. Prior to February 16, 1990, PK Ventures needed*185 the approval of limited partners holding at least 67 percent of the aggregate voting percentages of the limited partners of PKVI LP to exercise its authority over these matters. PK Ventures' increased participation in PKVI LP's affairs during the time in which it was transferring significant amounts of funds to the partnership does not support a conclusion that the transfers from PK Ventures to PKVI LP were bona fide loans.
Ninth, based upon Rose's experience in corporate finance, we are convinced that he could have arranged for the transfers from PK Ventures to PKVI LP to occur under terms significantly closer to arm's length than those that were actually chosen. This conclusion is bolstered by our consideration of the structure and formality of (1) the financing arrangements into which PK Ventures had entered in connection with the purchase of the stock of SLPC, TBPC, TPC, and TPTC; (2) the Summit Trust loan; (3) the financing arrangements into which Rose had entered in connection with his acquisition of control of PK Ventures during 1990; and (4) the financing arrangements between PKVI LP and unrelated parties.
Tenth, although some of the labels used to describe the transfers*186 from PK Ventures to PKVI LP on these businesses' books classified the transfers as debt, these labels cannot overcome the substance of these transfers. See
Based on the foregoing, we sustain respondent's determination that PKVI LP should not have deducted $ 100,661 of interest expense on its Form 1065 for 1991 with respect to these transfers. The parties agree, and the Court is persuaded, that we do not have jurisdiction over the adjustments made in the notice of deficiency sent to PKV&S with respect to imputed interest income reported on Forms 1120 for 1990 and 1991 and a bad debt deduction claimed on Form 1120 for 1991.
Issue #3 -- Transfers From PK Ventures, TBPC, and TPTC to Zephyr
The characterization of transfers from PK Ventures and its subsidiaries to Zephyr is relevant only to the bad debt deductions claimed by PKV&S and disallowed in the notice of deficiency for 1989 and 1990. For those years, *187 the treatment of Zephyr's liabilities was an S corporation item, to be determined at the corporate level. See
Issues #4 and #5 -- Partners' Basis in PKVI LP
Generally, a partner may deduct the partner's distributive share of losses of a partnership in which the partner is a member.
In these cases, the parties dispute whether PK Ventures had sufficient basis in its PKVI LP interest during 1990, 1991, 1992, and 1993 to deduct the losses that it claimed from PKVI LP on PKV&S's consolidated income tax returns for those years and whether the Roses had sufficient basis in their PKVI LP interest during 1990, 1991, 1992, 1993, 1994, and 1995 to deduct the losses that they claimed from PKVI LP on their joint Federal income tax returns for those years. The parties also dispute whether PK Ventures and the Roses are limited by the "at risk" rules of
A partner's adjusted basis in the partner's interest in the partnership is the basis of such interest determined under
Calculation of the Roses' basis and of PK Venture's basis in their respective PKVI LP interests for purposes of these cases must be consistent with treatment of the transfers from PK Ventures and its subsidiaries to PKVI LP on the latter's returns for the years of the transfers. With respect to 1991, however, we have determined the character of those transfers and have jurisdiction to do*192 so as a result of respondent's disallowance of imputed interest expense in the FPAA issued for 1991.
Petitioners argue that respondent did not specifically recharacterize the transfers in the FPAA and that respondent waived any adjustments other than interest expense based on recharacterization of those transfers and is precluded from raising them in this proceeding. Respondent argues that the Court does have jurisdiction to resolve the character of the transfers for all of the years but acknowledges that the tax effects of our conclusions require separate analysis. The nature of the transfers was tried by consent and was the predominant issue during trial and in the briefs of the parties. Thus, transfers during 1991 should be regarded as equity contributions to PKVI LP in the calculation of the partners' basis, but transfers prior to and subsequent to 1991 shall be treated for basis purposes consistent with reporting on PKVI LP's returns. Similarly, any other adjustments over which we have no jurisdiction should not be included in the basis calculations for purposes of this case.
Issue #6 -- The Roses' Basis in Their Zephyr Interest
An S corporation's income, losses, and deductions*193 are passed through pro rata to its shareholders. See
In these cases, the parties dispute whether the Roses had a sufficient basis in their Zephyr interest during 1990, 1991, and 1992 to deduct the losses that they claimed from that S corporation on their joint Federal income tax returns for those years. Whether or not an FSAA was sent to Zephyr for 1990, no such notice is before the Court in these cases. Thus, we do not have jurisdiction to redetermine Zephyr's actual income or loss and the consequential increases or decrease in basis.
The Roses did not assign error in their petition to respondent's determination of their basis in their Zephyr interest during 1990, 1991, and 1992. Under
a. The Petitioners concede the adjustments proposed by the
Respondent with respect to Zephyr Rock & Lime, Inc. (Adjustment
C) wherein the Respondent proposes to allow the Petitioners an
additional deduction in 1990 in the amount of $ 798,490.00 and to
disallow deductions in 1991 and 1992 in the amounts of
$ 868,812.00 and $ 615,355.00, respectively.
Subsequent to the Roses' filing their petition with the Court, the Supreme Court issued its opinion in
Petitioners filed their trial memorandum with*195 the Court on February 4, 2004. In their trial memorandum, petitioners made the following assertion:
The Commissioner has failed to increase Mr. Rose's basis in
Zephyr to account for Rose's proportionate share of excluded
cancellation of indebtedness income arising from the Zephyr
Bankruptcy. Mr. Rose's basis should be increased by
approximately $ 1,900,000 to reflect the amount of this
Gitlitz adjustment. * * *
In respondent's trial memorandum, also filed with the Court on February 4, 2004, respondent claimed that the following issue was unresolved: "22. Whether petitioners have sufficient basis to deduct claimed flow-through losses from Zephyr Rock & Lime, Inc. in 1990, 1991, and 1992?"
In their posttrial briefs dealing with basis issue, petitioners contended that the Supreme Court's holding in
With the upward adjustment of Rose's basis resulting from the
pass through of income from discharge of indebtedness that is
excluded from gross income under
his share of Zephyr's losses up to the amount of his basis,
including any losses that were previously suspended at the
corporate level because of a lack of basis in prior years.
Conversely, respondent contended that
Petitioners raised two additional contentions for the first time in their supplemental brief filed August 19, 2004. The first contention dealt with respondent's determination to include a $ 480,000 note that Rose gave to Mills in the calculation of Roses' basis in their Zephyr interest. The second contention dealt with treating the entire amount of the transfers from PK Ventures, TBPC, and TPTC to Zephyr as constructive dividends to Rose. Because these contentions were raised by petitioners for the*198 first time in their supplemental brief, we did not consider them in reaching our decisions in these cases. See
In respondent's supplemental brief, filed August 12, 2004, respondent attempted to amend respondent's determination to include the $ 25,955 of constructive dividends in the Roses' basis in their Zephyr interest and thus increase the deficiency determined against the Roses. Respondent did not seek to raise this new position at or before trial of these cases. Furthermore, respondent had not argued that respondent's determination to treat a portion of the transfers from PK Ventures, TBPC, and TPTC to Zephyr as a constructive dividend to the Roses was incorrect.
In their memorandum in support of their motion for reconsideration of*199 findings and opinion, filed 2 months after release of our now-withdrawn opinion, petitioners contended for the first time that the statutory notice of deficiency sent to the Roses --
is invalid to the extent it excludes from the Roses' basis in
Zephyr a proportionate share of Zephyr's excluded COD income.
Moreover, since respondent failed to adjust Zephyr's excluded
COD income in a FSAA issued to Zephyr, this Court did not have
jurisdiction to sustain respondent's adjustment. To be clear,
petitioners do not argue that the Court is without jurisdiction
to determine the Roses' outside basis in Zephyr. Rather,
petitioners argue only that the Court did not have jurisdiction
to determine the Roses' (or any other shareholder's) share of
Zephyr's excluded COD income in a shareholder level proceeding.
At the time of hearing on petitioners' motion for reconsideration, the parties agreed that the Court lacked jurisdiction to redetermine the Roses' basis in their Zephyr interest. Petitioners argued, for the first time, that "We really think that the issue here is the 1990 return, not the 1989 return." Petitioners*200 then proceeded to argue that the Schedule L to Zephyr's Form 1120S for 1990 reflected COD income, which was not required to be "reported" because of
As detailed in our findings of fact, supra pp. 30-33, no direct references were made and no explanations were provided in Zephyr's Forms 1120S as to the amounts that Zephyr received from PK Ventures and its subsidiaries for years prior to 1990. On its Form 1120S for 1990, Zephyr represented that "No income or expense items where [sic] reported on the tax return due to the fact that the corporation was not solvent after the completion of the bankruptcy." Petitioners now argue that COD income was reflected on Zephyr's return in an attachment, although not on the face of the return, because (1) Zephyr's net loss from operations was eliminated by the amount of excluded COD income and (2) in Schedule L to the Form 1120 for 1990, assets and liabilities were eliminated and retained earnings were increased to reflect COD income of $ 7,144,750 that was excluded under
Respondent argues that the Court lacks*201 jurisdiction to increase the basis of the Roses in Zephyr as belatedly sought by petitioners. Respondent contends that the Court had no jurisdiction to determine basis in excess of the amounts determined in the statutory notice, which did not depend on recharacterization or any other determination that would cause the Roses' basis in Zephyr to become a partnership item. Respondent notes that the Roses did not report any COD income from Zephyr for 1989 or 1990 and disputes petitioners' contention with respect to the effect of the Schedule L to the 1990 return. Respondent also contends that the Court lacks jurisdiction to increase the Roses' basis in Zephyr in accordance with respondent's concession.
In view of the extended history of these cases, we believe that the interests of justice are best served, and jurisdiction is not implicated, by accepting the Roses' concession in their petition of the correctness of respondent's determination of basis, as supplemented by respondent's concession of increased basis. We do not believe that we are required to increase basis in accordance with Zephyr's 1990 return consistent with a claim made for the first time in a motion for reconsideration*202 and based on an analysis different from and inconsistent with the claim made prior to and during trial and in posttrial briefs specifically addressed to that issue. The notice of deficiency that was sent to the Roses does not purport to redetermine COD income or any other entity-level item, so cases holding notices of deficiency invalid as to items where there has not been a prior entity-level proceeding are not in point. See
Petitioners would have the notice of deficiency make an affirmative adjustment in the absence of an entity-level proceeding reflected in an FSAA. Respondent contends that the claim of increased basis could have been raised by the Roses in an administrative adjustment request under
Issue #7 -- The Roses' Basis in Their SLPC Interest
Petitioners contend that the Roses' basis in their SLPC interest should be increased as a result of the $ 350,000 transaction that occurred between SLPC, TPC, and Rose during 1994 and the $ 800,000 transaction that occurred*204 between SLPC, TPC, and Rose during 1995. In support of this contention, petitioners argue that respondent has conceded the bona fides of the transactions between SLPC, TPC, and Rose during 1994 and 1995 through the following stipulation:
At December 31, 1994, Mr. Rose paid $ 350,000 of the amount which
St. Louis owed Tampa Pipeline Corporation by reducing the amount
which Tampa Pipeline Corporation owed him.
The transaction was recorded on Tampa Pipeline Corporation's
books by a journal entry reducing the amount which it owed Rose
by $ 350,000 and reducing the amount which St. Louis Pipeline
owed it by $ 350,000. The transaction was recorded in the audited
financial statements and tax returns for 1994.
The transaction was reflected on the books of St. Louis Pipeline
by a journal entry reflecting a $ 350,000 reduction it owed Tampa
Pipeline Company and an increase of $ 350,000 in the amount it
owed Rose. During 1995, Rose paid an additional $ 800,000 of St.
Louis Pipeline's debt to Tampa Pipeline Company * * * [by]
reducing the amount Tampa Pipeline owed him.
*205 Tampa Pipeline recorded the 1995 transaction by a journal entry
reducing by $ 800,000 the amount which it owed Rose and the
amount which St. Louis Pipeline owed Tampa Pipeline. St. Louis
Pipeline also recorded the transaction in a journal entry,
reducing its indebtedness to Tampa Pipeline by $ 800,000, and
increasing its indebtedness to Rose by $ 800,000.
The transaction was recorded in the audited financial statements
and the tax returns for 1995.
In further support of this contention, petitioners argue that the transactions between SLPC, TPC, and Rose were more than mere book entries and "that a change in Rose's rights to repayment has, in fact, occurred". Petitioners cite only
We are unpersuaded that the quoted stipulation is any kind of concession on the part of respondent. The stipulation merely outlines the manner in which the transactions between SLPC, TPC, and Rose during 1994 and 1995 were recorded on the books of SLPC and TPC. The stipulation neither establishes that these transactions had economic substance nor that these transactions gave rise to a bona fide debt between SLPC and Rose.
An S corporation shareholder must make an actual economic outlay to the S corporation in order to increase the basis of his or her interest in the S corporation.
Petitioners have failed to address the myriad cases involving transactions factually similar to or indistinguishable from the transactions between SLPC, TPC, and the Roses during 1994 and 1995. See, e.g.,
In reaching its decision, the Court of Appeals for the Fifth Circuit discussed the focus of Congress at the time
The amount of the net operating loss apportioned to any
shareholder pursuant to the above rule is limited under section
in the corporation; that is, to the adjusted basis of the stock
in the corporation owned by the shareholder and the adjusted
basis of any indebtedness of the corporation to the shareholder.
* * * [S. Rept. 1983, 85th Cong., 2d Sess. (1958), 1958-3 C.B.
922, 1141.]
The Court of Appeals then went on to conclude:
In the transaction at issue in this case, the taxpayers in 1967
merely exchanged demand notes between themselves and their
wholly owned corporations; they advanced no funds to either
Lubbock or Albuquerque. Neither at the time of the transaction,
nor at any other time prior to or during 1969 was it clear that
the taxpayers would ever make a demand upon themselves, through
Lubbock, for payment of their note. Hence, as in the guaranty
situation, until they actually paid their debt to Lubbock in
1970 the taxpayers had made no additional investment in
Albuquerque that would increase their adjusted basis in an
indebtedness of Albuquerque to them within the meaning of
*210
In
[The taxpayer's] bookkeeping maneuvers merely shifted, on paper,
the liability for prior loans. Hennessey's debit to * * * [the
taxpayer's] drawing account, and its subsequent credit to that
account and debit to * * * [the taxpayer's] undistributed
taxable income account, do not reflect a current economic outlay
entitling * * * [the taxpayer] to increase his basis in A & L.
Although the*211 entries in Hennessey's books technically reduced *
* * [the taxpayer's] book equity, such entries could not, absent
liquidation of Hennessey, leave * * * [the taxpayer] "poorer in
a material sense." * * * [Shebester v. Commissioner,
supra; citation omitted.]
Furthermore, petitioners' reliance on
In the ruling [
shareholder's note was an outsider, a bank, which stood ready to
enforce the obligation. Hence it was clear at the time the
substitution occurred that at some future date payment would be
required. Here, by contrast, the obligee on the taxpayers'
demand note was their own wholly-owned corporation. * * *
[
After considering the reasoning set forth in the cases discussed above and the dearth of evidence establishing the substance of the transactions*212 between SLPC, TPC, and Rose, we conclude that the only intended economic effect of these transactions was to enable the Roses to deduct losses from SLPC on their joint income tax returns for 1994 and 1995 that they would not have otherwise been able to deduct. At the time that these transactions were consummated, no party either advanced or received any funds. Rather, the transactions occurred through offsetting book entries. Furthermore, there is no evidence that indicates whether a bona fide debt existed between TPC and Rose prior to the occurrence of these transactions or whether TPC had paid Rose any of the amounts that it owed to him, and we are unpersuaded that the evidence establishes that SLPC paid Rose any of the amounts that it owed to him after these transactions occurred. Because these transactions did not leave Rose poorer in a material sense when fully consummated, we conclude that Rose did not make an actual economic outlay by engaging in them. Accordingly, we sustain respondent's determination that the Roses had an insufficient basis in their SLPC interest during 1994 and 1995 to deduct the losses that they claimed from that S corporation on their joint income tax returns*213 for those years.
Issue #8 -- Reasonable Compensation
Whether an expense that is claimed pursuant to
In these cases, the parties dispute the reasonableness of the total compensation paid to Rose by PK Ventures and its subsidiaries during 1992 and 1993 and deducted by PKV&S on its consolidated income tax returns for those years. Petitioners contend that the amounts that PKV&S deducted as compensation paid to Rose in 1992 and 1993 were*215 reasonable because (1) a significant portion of these amounts was intended to be deductible as compensation for services that Rose performed for PK Ventures and its subsidiaries during 1986 through 1991 and (2) an analysis of the facts and circumstances of these cases establish that these amounts were reasonable. Conversely, respondent contends that the amounts that PKV&S deducted as compensation paid to Rose in 1992 and 1993 were not reasonable because (1) petitioners have failed to establish that a significant portion of these amounts was intended to be deductible as compensation for services that Rose performed for PK Ventures and its subsidiaries during 1986 through 1991 and (2) the testimony provided by petitioners' expert witness establishes that these amounts were not reasonable. We address the parties' contentions below.
Petitioners contend that a significant portion of the compensation that Rose received from PK Ventures and its subsidiaries during 1992 and 1993 was intended to be deductible as compensation for services that Rose performed for those corporations during 1986 through 1991. In support of this contention, petitioners argue that (1) respondent's determination*216 in the PKV&S notice of deficiency and paragraph 51 of the Stipulation of Facts establish that a portion of the compensation deducted by PKV&S on its consolidated income tax returns for 1992 and 1993 is attributable to deferred compensation that was paid to Rose during those years and (2) Rose was insufficiently compensated for his services to PK Ventures and its subsidiaries during 1986 through 1991. As discussed below, petitioners' arguments are unpersuasive.
Paragraph 51 of the Stipulation of Facts recites the following:
51. As is reflected in the notice of deficiency, the respondent
determined that PK Ventures is entitled to a 1992 deduction for
compensation for Rose in the amount of $ 438,055, which consists
of $ 143,317 of then-current compensation and $ 294,738 of
deferred compensation. The notice of deficiency also reflects
the determination of the respondent that PK Ventures is entitled
to a 1993 deduction for compensation for Rose in the amount of
$ 139,141, all of which is then-current compensation.
Paragraph 51 of the Stipulation of Facts does not add anything to respondent's determination, and it does*217 not establish that respondent's determination is correct. Because our conclusions as to deductible amounts are based on the evidence and not on any alleged concession as to deferred compensation, petitioners' argument as to the effect of this stipulation and of respondent's determination in the PKV&S notice of deficiency is unpersuasive. Notwithstanding this conclusion, we do not allow respondent to disavow the amount allowed in the PKV&S notice of deficiency for "deferred compensation" paid to Rose in 1992 (as respondent attempts to do on brief) because to do so would be to permit respondent to increase the related deficiency without making a timely claim for it. See
Under certain circumstances, prior services may be compensated in a later year.
In support of their argument that Rose was insufficiently compensated for his services to PK Ventures and its subsidiaries during 1986 through 1991, petitioners claim that a deferred compensation agreement existed between Rose and those corporations during those years and that the "going concern" notes included in the notes to the audited financial statements for the year ended December 31, 1989, for PK Ventures, SLPC, TBPC, and TPTC establish the existence of this deferred compensation agreement. These notes state that each corporation's "management extended payment terms related to certain accrued payables such as officer's salaries, indefinitely, subject to cash availability." There is no indication in these notes as to the period of time, other than 1989, to which these extended payment terms relate or to the amount or percentage of compensation that was not paid to Rose. Moreover, there is no evidence of corporate resolutions and/or other agreements by PK Ventures, *219 SLPC, TBPC, or TPTC that set forth the terms of these extended payment arrangements. In addition, PKV&S's audited consolidated financial statements for the years ended December 31, 1990, through December 31, 1993, made no reference to any extended payment arrangements or to any deferred compensation arrangement with Rose, and there was no liability for deferred compensation reported on the Schedules L attached to PKV&S's consolidated income tax returns for 1992 and 1993.
When questioned on cross-examination about the existence of a deferred compensation agreement, Rose testified as follows:
Q [By respondent's counsel] Did you have an agreement as of the
end of 1991 between yourself and PK Ventures to defer your
compensation for 1991 and prior years?
A [By Rose] Being a small company, conceptually, what we did was
the real deal. And the real deal was-is I did not pay myself, so
I deferred it.
Q Did you have an agreement --
A Well, an agreement as a written agreement? No, sir.
Q Did you have an understanding, sir, that you were entitled to
compensation in 1991 and that you, as PK*220 Ventures, were going to
defer that amount into the next or subsequent years?
A I don't believe I had an agreement. I knew I wanted to be
paid.
The lack of documentation in the corporate records of PK Ventures and its subsidiaries and Rose's testimony at trial significantly undermine the inference that petitioners wish for us to draw from these "going concern" notes. Consequently, we conclude that these notes do not establish the existence of a deferred compensation agreement between Rose and PK Ventures and its subsidiaries during 1986 through 1991. After considering the testimony and lack of evidence supporting petitioners' position, we conclude that no deferred compensation agreement existed between Rose and PK Ventures and its subsidiaries during those years.
As additional support for their argument that Rose was insufficiently compensated for his services to PK Ventures and its subsidiaries during 1986 through 1991, petitioners claim: "Rose did not receive any compensation from Ventures and its subsidiaries for 1986, 1987, and 1988. In 1989, Ventures paid Rose $ 170,000, and in 1990, Rose was paid $ 50,068. In 1991, Ventures paid Rose $ 140,469." In*221 sum, petitioners claim that Rose was paid $ 360,537 for his services to PK Ventures and its subsidiaries during 1986 through 1991. The record establishes, however, that Rose received $ 740,537 for his services to PK Ventures and its subsidiaries during 1986 through 1991. In addition, PK Ventures provided health insurance to Rose and his family during those years, PK Ventures provided Rose with a company car beginning in 1991, and Rose received equity interests in both PK Ventures and PKVI LP as part of his compensation for organizing those investment opportunities for Printon Kane. Accordingly, petitioners' assertion is incomplete and inaccurate.
Petitioners also claim that the amounts of deferred compensation listed in PK Ventures' general ledger for 1992 establish that Rose was not sufficiently compensated for the services that he performed for PK Ventures and its subsidiaries during 1986 through 1991. After considering, inter alia, Rose's testimony as to the manner in which he "calculated" the deferred compensation amounts listed in PK Ventures' general ledger for 1992, the lack of any contemporaneous accounting for these amounts prior to 1992, and the failure to list these amounts*222 as liabilities in both PKV&S's consolidated financial statements and consolidated income tax returns, we are not persuaded that these amounts represented compensation that Rose was owed for his services to PK Ventures and its subsidiaries during 1986 through 1991. Rather, we conclude that the health insurance, company car, and $ 740,537 that Rose received from PK Ventures and its subsidiaries, along with the equity interests that Rose received in PK Ventures and PKVI LP, were sufficient compensation for his services to PK Ventures and its subsidiaries during 1986 through 1991.
We conclude that no portion of the amounts that PKV&S deducted as officer compensation on its consolidated income tax returns for 1992 and 1993 is attributable to deferred compensation. Therefore, we must decide whether the $ 1,646,948 that PKV&S deducted in 1992 and the $ 2,031,933 that PKV&S deducted in 1993 were reasonable amounts of compensation for the services that Rose performed for PK Ventures and its subsidiaries during those years.
The cases contain a lengthy list of factors that are relevant when considering the reasonableness of the compensation deductions claimed by a business, including: (1) The*223 employee's qualifications; (2) the nature, extent, and scope of the employee's work; (3) the size and complexities of the business; (4) a comparison of salaries paid with gross income and net income; (5) the prevailing general economic conditions; (6) a comparison of salaries with distributions to stockholders; (7) the prevailing rates of compensation for comparable positions in comparable concerns; (8) the salary policy of the taxpayer as to all employees; and (9) the amount of compensation paid to the particular employee in previous years.
Each party*224 presented expert testimony in support of its positions on reasonable compensation levels. We are not bound by the opinion of any expert when the opinion is contrary to our own judgment.
Petitioners' expert, Dr. Keith R. Ugone (Ugone), performed an analysis that focused on determining an amount of total compensation that was reasonable for the services that Rose performed for PK Ventures and its subsidiaries during 1987 through 1993. In so doing, Ugone assumed that a deferred*225 compensation agreement existed between Rose and PK Ventures and its subsidiaries during those years. As discussed above, that assumption was unwarranted. As part of this analysis, however, Ugone determined amounts of "reasonable compensation based upon market data" for the services that Rose performed for PK Ventures and its subsidiaries during 1992 and 1993.
In determining the amounts of "reasonable compensation based upon market data", Ugone identified public companies that were similarly situated to PK Ventures during those years. Ugone identified 10 companies for purposes of his analysis for 1992 and 1993. Ugone also considered data published in several different executive compensation surveys in his analysis. Based upon the entirety of his analysis, Ugone concluded that reasonable compensation amounts for the services that Rose performed for PK Ventures and its subsidiaries during 1992 and 1993 were $ 360,067 and $ 366,391, respectively.
Respondent's expert, Paul R. Dorf (Dorf), identified a "peer group" of public companies that were similarly situated to PK Ventures and whose top executives performed duties similar to those performed by Rose. Dorf identified eight companies*226 for purposes of his analysis. In his analysis, Dorf also considered data published in at least five different executive compensation surveys. Based upon the entirety of his analysis, Dorf concluded that reasonable compensation amounts for the services that Rose performed for PK Ventures and its subsidiaries during 1992 and 1993 were $ 383,104 and $ 362,356, respectively.
Petitioners contend that the compensation that Rose received from PK Ventures and its subsidiaries during 1992 and 1993 was reasonable based on an analysis of the following factors: (1) Dividend history; (2) past and present financial conditions; (3) nature, extent, and scope of employee's work; (4) complexity of employer's business; (5) risk assumed by the employee; and (6) employee's qualifications and training. Petitioners attempt to discount the determinations of reasonable compensation made by their own expert by arguing that his determinations reflect a conservative approach. Petitioners also attempt to discredit the determinations of reasonable compensation made by respondent's expert by calling his determinations "facially suspect". Furthermore, petitioners argue that there is no consensus in the determinations*227 made by Ugone and Dorf. Conversely, respondent contends that "there is an expert consensus as to reasonable compensation for the duties that Rose performed on behalf of PK Ventures during 1992 and 1993." Respondent concludes that PKV&S should be limited to deducting the reasonable compensation amounts determined by Ugone for 1992 and 1993. We consider these contentions below.
We agree with petitioners that a number of factors must be considered when deciding whether compensation is reasonable in situations such as the one presented here. With respect to the factors cited by petitioners, our review of both experts' reports leads us to the conclusion that they considered many of these factors as well as others in making their determinations as to reasonable compensation amounts for 1992 and 1993. In particular, we note the following excerpt from Dorf's report:
In gathering relevant company data, identifying market data,
conducting our analyses, and ultimately rendering our expert
opinion, we considered the following issues:
1. What were Mr. Rose's qualifications?
2. What were Mr. Rose's duties and responsibilities at*228 PKV?
3. What was the financial performance of PKV during the
period 1987 through 1991?
4. What was Mr. Rose's compensation during the period 1987
through 1993?
5. How was Mr. Rose's compensation determined?
6. What was the market value of Mr. Rose's position during
1987 through 1993?
7. How did Mr. Rose's compensation compare to the market
value of similar position(s)?
8. Was there a deferred compensation plan in place at PKV?
Accordingly, we are unpersuaded that we should deviate from the reasonable compensation amounts determined by the experts in these cases. Rather, we conclude that these expert reports establish a consensus as to the amounts of compensation that were reasonable for the services that Rose performed for PK Ventures and its subsidiaries during 1992 and 1993. Because the experts' calculations lead to approximations, in any event, and because Rose's services to PK Ventures and its subsidiaries were obviously substantial, we give him the benefit of the higher of the amounts determined*229 by the experts.
Using our best judgment on the entire record, we conclude that, for 1992 and 1993, reasonable compensation for Rose is $ 383,104 and $ 366,391, respectively. Therefore, for 1992, PKV&S is limited to deducting $ 383,104 for compensation paid to Rose plus an additional $ 294,738 to reflect the amount allowed by respondent in the PKV&S notice of deficiency for "deferred compensation". For 1993, PKV&S is limited to deducting $ 366,391 for compensation paid to Rose.
Issue #9 -- Penalties
Respondent determined accuracy-related penalties with respect to the Roses under
The
Petitioners argue that the accuracy-related penalties should not be imposed against the Roses because "respondent is unable to carry his burden of production as to the penalty pursuant to the requirements of
Based upon our analysis of the relevant facts and circumstances of these cases, we conclude that respondent's imposition of accuracy- related penalties against the Roses must be sustained if the recalculation of the Roses' income tax liabilities for 1990 through 1993 gives rise to substantial understatements of income tax for those years.
We have considered the arguments of the parties that were not specifically addressed in this opinion. Those arguments are either without merit or irrelevant to our decision.
To reflect the foregoing and the concessions of the parties,
Decisions will be entered under
ORDER
On March 28, 2005, we filed a memorandum opinion,
By this Order, filed this date,
After filing their motion for reconsideration, on July 1, 2005, petitioners also filed motions for leave to amend the*234 petitions in docket Nos. 5836-99 and 10154-99 to assert statute of limitations defenses. Respondent contends that the motions to amend the petitions depend on erroneous legal analysis and are untimely. We explain below our denial of petitioners' motions for leave to amend.
Jurisdictional Issues (Issue Nos. 2, 3, 4, 5, and 6)
It is indisputable that jurisdictional issues may be raised at any time by any party or by the Court. See generally
(1) The notice of deficiency sent to PKV&S erroneously determined that PK Ventures should not have imputed interest income of $ 67,772 and $ 100,661 on its 1990 and 1991 Forms 1120, respectively, or deducted a bad debt loss of $ 1,516,246 on its 1991 Form 1120. The income and expense items in issue should have first been the subject of a partnership proceeding involving PKVI LP. Because the notice of deficiency was issued*235 prior to the completion of any such partnership proceeding, there is no jurisdiction with respect to these items.
(2) The Court does not have jurisdiction to adjust basis as a result of changes predicated on partnership items from 1990 forward, for the same reason, to wit, partnership proceedings were not completed before losses that were passed through to the Roses were disallowed on the ground that they lacked sufficient basis. Improper adjustments in this regard thus include those resulting from reclassification of transfers to PKVI LP as equity rather than debt and items resulting from that reclassification to the extent that they affect basis. See
(3) The Court does not have jurisdiction to adjust the Roses' basis as a result of changes predicated on S corporation items of Zephyr Rock & Lime, Inc. (Zephyr). See generally
The parties disagree, however, as to the consequence of the*236 limits on our jurisdiction with respect to affected items. With respect to reclassification of transfers among Rose and the entities as contributions to capital rather than debt, petitioners contend that the failure to issue an FPAA for certain years precludes reclassification of amounts that were shown as debt on the partnership's return for those years and that we are "conclusively bound" to accept the classification for years that were not the subject of an entity-level proceeding. Respondent argues that, because the issue carries over into 1991, a year over which we have jurisdiction, we can make the determination necessary to resolve issues over which we have jurisdiction. Specifically, in docket No. 6395-99, to determine whether PKVI LP properly deducted interest for 1991, the year for which the FPAA was issued and which is before us in these consolidated cases, we must determine whether interest was in fact attributable to bona fide debt created during 1991 and in prior years. We have done so as a factual matter based on the record made during trial and have reached our legal conclusion based on the factors discussed in
As discussed in our substituted opinion, until shortly prior to trial, petitioners did not dispute respondent's determination in the statutory notice of the Roses' basis in Zephyr. Respondent objected to consideration of the claim of increased basis, predicated on cancellation of indebtedness income and
SLPC Basis Issue (Issue No. 7)
Petitioners argue that Rose's transfer of funds to PK Ventures in 1992 and 1993 was an "indirect advance to SLPC" and that Rose obtained additional basis in SLPC for 1994 and 1995 purposes when book entries were made by which Rose reduced an obligation owed to him by TPC, as successor to PK Ventures, and TPC reduced SLPC's debt to TPC. Petitioners refer to an "exchange of notes", but there are no such notes in the record in these cases. Petitioners assert that our opinion on this issue is inconsistent with our findings regarding transfers by Rose to PK Ventures during 1992. Our findings, however, reflect that cash advanced by Rose to PK Ventures in 1992 was used in substantial*239 part to pay the TPTC sellers. There are no findings identifying any transfer as an indirect advance to SLPC. Petitioners have not cited any evidence supporting petitioners' retrospective characterization of advances to PK Ventures as an indirect advance to SLPC in the first instance. That PK Ventures' books reflect transfers to SLPC from time to time does not establish that Rose was advancing money to SLPC or that the moneys advanced were bona fide loans.
Petitioners also rely on an oral stipulation as a conclusive admission by respondent that TPC's debt to Rose as of 1994 was bona fide and that reduction of that debt was an actual economic outlay. Petitioners argue that the correct application of the analogy based on
In our Memorandum Findings of Fact and Opinion (slip op. at 131- 133), we interpreted the stipulation on which petitioners relied as merely outlining the manner in which the transactions were recorded on the books of the entities involved. The stipulation is at least ambiguous, and petitioners' *240 interpretation is contradicted by the overwhelming evidence that Rose's various advances to the various entities controlled by him were contributions to capital rather than bona fide loans. We are unpersuaded that contributions to the capital of PK Ventures can be converted to contributions to the capital of SLPC 2 years later by the device of book entries. Such devices are exactly the type of transactions rejected in
We conclude that Rose was merely attempting to shift basis from his profitable corporation to his loss corporation by the 1994 and 1995 book entries. He did not make an actual economic outlay and was not "poorer" after the book entry transactions. We are not persuaded that our prior analysis was erroneous, and petitioners' motion is being denied with respect to this issue.
Motions for Leave to Amend Petitions
Petitioners' proposed amendments to the petitions in docket Nos. 5836-99 and 10154-99 (1) would require further*241 evidence as to issues over which we have jurisdiction or (2) would have us offer an advisory opinion with respect to future proceedings that may be commenced as either entity-level proceedings or by affected items statutory notices or computational adjustments. In view of the history of these cases, justice would not be served by expansion of the issues or reopening the record for further trial. See
These cases were tried on February 4 through 6, 2004, after having been continued on six separate occasions. All issues addressed in our opinion were either raised in the pleadings or tried by consent. At the conclusion of trial, the Court ordered briefs. On May 10, 2004, at the request of the parties, the time for filing briefs was extended, and separate briefing schedules were set for the reasonable compensation and bad debt issues, on the one hand, and for the basis issues, on the other. These times were extended to provide the parties with more time to attempt to resolve basis issues that should*242 have been determinable from the records of petitioners, some of which were belatedly produced and produced outside of the trial record. The replies to the supplemental briefs on the basis issues were filed October 14 and 18, 2004, after additional extensions requested by the parties. Our prior opinion was filed March 28, 2005. Petitioners' motion for reconsideration was filed, after an extension, on May 27, 2005, and their motions to amend the petitions were filed July 1, 2005.
Petitioners argue that we should grant their untimely motions if we allow respondent to expand on the narrow determination in the FPAA issued to PKVI LP for 1991 and do not hold that respondent waived other claims for that year. We do not believe that we have gone beyond findings necessary to the interest expense issue specifically raised in the FPAA, but, in any event, the now disputed issues were tried by consent and fully briefed. Thus, we see no comparison between the conclusion that petitioners waived unpleaded limitations defenses and petitioners' claims that respondent waived litigated adjustments for the year before the Court. Petitioners' motions for leave to amend the petitions at docket Nos. 5836-99 and*243 10154-99 will be denied.
We have considered the remaining arguments of the parties, and they either lack merit or do not. affect our disposition of the pending motions. Upon due consideration and for cause, it is hereby
ORDERED: That
ORDERED: That petitioners' Motion for Reconsideration of Findings and Opinion, filed May 27, 2005, is granted in that the jurisdictional issues raised therein are reflected in
ORDERED: That petitioners' Motion for Reconsideration of Findings and Opinion, filed May 27, 2005, is otherwise denied. It is further
ORDERED: That petitioners' Motions for Leave to File an Amendment to the Petition, filed July 1, 2005, in docket Nos. 5836-99 and 10154-99, are denied.
Mary Ann Cohen
Judge
Dated: Washington, D.C.
March 7, 2006
1. Cases of the following petitioners are consolidated herewith: P.K. Ventures I Limited Partnership, Robert L. Rose, Tax Matters Partner, docket No. 6395-99; Robert L. and Alice N. Rose, docket No. 10154-99.↩
*. This opinion supersedes T.C. Memo. 2005-56, which is withdrawn by order served this date, as a result of a motion for reconsideration filed subsequent to the release of T.C. Memo. 2005-56.↩
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